House Republicans Fined for Violating Pelosi’s Mask Mandate Appeal to Supreme Court

Reps. Massie, Taylor Greene, and Norman argue that the pay cut imposed for not wearing a mask violates the 27th Amendment.
House Republicans Fined for Violating Pelosi’s Mask Mandate Appeal to Supreme Court
Rep. Marjorie Taylor Greene (R-Ga.) speaks at a news conference, with Rep. Thomas Massie (R-Ky.) in the background, on the “Fire Fauci Act” on Capitol Hill in Washington on June 15, 2021. (Anna Moneymaker/Getty Images)
Matt McGregor

House Republicans who were fined for refusing to comply with a COVID-19 mask mandate in 2021 are petitioning the Supreme Court to hear their case after it was dismissed in the lower courts.

Reps. Thomas Massie (R-Ky.), Marjorie Taylor Greene (R-Ga.), and Ralph Norman (R-S.C.) are arguing that the $500 pay deductions imposed by former House Speaker Nancy Pelosi for not adhering to her mask rule violate the 27th Amendment of the Constitution.

The amendment prohibits adjustments in salary of members of Congress from taking effect until after the next election of the House of Representatives.

In January 2021, the Democrat-run House voted to adopt a resolution to penalize members $500 for the first offense of not wearing a mask, then $2,500 for the following offenses.

The mandate ended in February 2022.

“The Representatives sued the Speaker of the House, the Sergeant-at-Arms, and the Chief Administrative Officer, claiming the adoption and enforcement of the Resolution violated the First Amendment, the Twenty-Seventh Amendment, the Discipline Clause, the Compensation clause, and the Presentment Clause,” the appeals court wrote in its June 2023 ruling dismissing the case. “The district court held the suit barred by the Speech or Debate Clause and dismissed for lack of subject matter jurisdiction.”

Speech or Debate Clause

According to the appeal’s court ruling on June 30, the speaker is protected from lawsuits challenging how the House is managed.

Overseeing the case in the appeals court were Judge Neomi Rao, a Trump appointee; Judge J. Michelle Childs, a Biden appointee; and Judge David Tatel, a Clinton appointee.

“The Representatives challenge the adoption and enforcement of the Resolution, which required wearing a mask in the Hall of the House,” the judges wrote.

“We cannot consider the merits of the Representatives’ constitutional arguments because their suit concerns legislative acts protected by the Speech or Debate Clause.”

That clause gives immunity from lawsuits that “extends to all legislative acts, including matters within the constitutional jurisdiction of the House,” the judges ruled.

“The House adopted the Resolution pursuant to its authority to ‘determine the Rules of its Proceedings,’ and it fined the Representatives pursuant to its authority to ‘punish its members for disorderly Behavior,’” the judges said, later adding that the resolution “and its enforcement are squarely within the jurisdiction of the House, and therefore legislative acts.”

Mr. Massie, Ms. Greene, and Mr. Norman have petitioned the U.S. Supreme Court to review three issues, among them being whether the speech or debate immunity “precludes any and all claims by a Member of Congress against congressional administrative officials who administer pay, where such claims are pay claims.”

Arguing for the representatives was, among other attorneys, Christopher Wiest, who wrote in the petition to the Supreme Court, “The refusal to wear a mask did not result in a disruption of congressional business.”

He argued, “Speech or Debate Immunity does not shield Congress in a way that renders pay claims non-justiciable.”

“A censure, a reprimand, the release of a House journal that condemned the Petitioners, or even, with 2/3 vote, a measure expelling the Petitioners, would be actions well within the ambit of Speech or Debate immunity,” Mr. Wiest wrote. “But here we deal with a pay claim.”

‘Unfathomable Discipline’

To allow the D.C. Circuit court’s opinion to stand, Mr. Wiest argued, would be to “open the floodgates to unfathomable discipline.”

“The House Rules, under this Doctrine, could impose physical punishment, flogging, upon members and, under the D.C. Circuit’s precedent, no judicial remedy would be available, the Eighth Amendment notwithstanding,” Mr. Wiest wrote.

Mr. Wiest argued that the 27th Amendment clearly states, “No Law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”

“A primary purpose of the Twenty-Seventh Amendment is to prevent the reduction of congressional salaries without an intervening election because the Founders expressly recognized the majority could misuse its power to threaten the integrity and independence of Members, thus dissuading individuals of modest means from serving in Congress,” he argued.

Though the amendment is often mistakenly considered as a restriction solely on Congress’ power to increase its pay, that was only one of the purposes, he said.

“Ignoring this historical reality, the District Court fell into the trap of elevating this purported intent behind the enactment of the law over the clear and unambiguous language of the law,” he argued. “Regardless, had pay raises been the only concern behind enactment, the language would have stated as much. However, the amendment’s plain language prohibits any law ‘varying the compensation,’ not just those that increase it.”

The decrease in pay went into the consideration of writing the 27th Amendment as well, he argued, adding that the founders believed that “financial means should not be used to coerce national legislatures from independent judgment, and financial means should not be used in an attempt to exclude those of modest means from public service.”

“Those foundational concerns are precisely what underlies this case: using financial pressure, through the manipulation of salary by the House Democratic Majority, to deprive Republican Members, and only Republican Members, of their political independence.”