the central issue in this case is a speech or because issue and that question is whether the defendant house officers in this case or immune from this suit in which we are challenging their act executing ensure i know the proxy voting process established by house resolution nine hundred and sixty five and we should meet they are not immune from this it and the reason relates to this court's clear clearly drawn temporal distinction following supreme court precedent between legislative acts things that and things of interest to the legislative process which are in who on the one hand and acts taken in execution or carrying out such legislative acts which are not immune and this court case and walker vs jones articulated this temporal distinction it's a terrible distinction very very clearly  in that case then judge ruth bader ginsburg wrote for walker for the court in walker there's a that the supreme court has drawn a key distinction she said between acts that are legislative in nature and acts that in her words execute a legislative order or carry out a legislative direction and judge ginsburg just then judge you as a bird then explain that temporal quality of that distinction this is what she said and it's worth quoting her words in full your heart is supreme court has instructed that execution of a legislative decision is not cloaked with speech or debate immunity for execution or carrying out legislative directions coast that what the clause protects the process leading up to and issuance of the legislative direction and so in that case as you describe it yes i understand the point i think where you have legislation and then it's executed and the execution itself doesn't have to do with legislating what seems potentially different about this case is that you have a house rule and then it's executed but the execution itself has to do with legislating because the house rule is about how to vote and so it seems different from the principle that you're identifying and walker because here the acts that are coming about that you're deeming executive acts are themselves intimately bound up in the process of legislating and in fact in walker itself for example the opinion says activities in a role to the legislative process may not be examined but peripheral activities not closely connected to the business of legislating do not enjoy speech or debate shall turn when i look at that phrase i think that what we're talking about here seems integral to the legislative process and it is closely connected to the business of legislating even though i take your temporal point it's an execution of a house rule but the execution itself has to do with the business of legislating where your honor i would suggest to you that that is not a  or meaningful distinction in the court's distinction between those things that lead up to a legislative directive the things that are bound up with barring from voting a member of on the house floor so there again that act itself related directly to voting voting yes for one prop and one member but it still was bound up with the question of voting the other thing i would say your honor on that on that point is that it is certainly true that voting as a general matter is interop of course to the legislative process many cases ever recommend that anyone could could deny it but proxy voting is a different thing altogether that can't be unprecedented has never happened before is somehow an interim goal to legislation in legislative process your honor that congress hasn't been kind of stumbling through its two hundred and thirty one year history on unable to use and never attempting to use some type of of a feature or i want to emphasize that nothing in this case challenges any deliberation in hearing any subpoena or any vote that led up to the enactment of nine hundred and sixty five dollars to the contrary the controlling emphasis on the consumer human case and i want to address that case because far from controlling in this circumstance we respectfully submit that it is it is entirely distinguishable and distinguishable at three different levels st it is not a speech or debate clause case it's a hybrid case in n the plaintiff their consumers union have been unconstitutionally denied access to the press gallery in the house on on that point mr cooper that will go back to the walker opinion that you started off with yes walker describes i'd you're right of course that the opinion of consumers union invokes both modes of analysis but walker describes consumers union in terms of a speech or debate conclusion yes  it's not i don't know the way in walker look back at consumers union and says it has nothing to do we can draw lessons about future debate because it was bound up with political question notions as well because the way walker describes consumers union is that decision in barker the court recognized the fact that the decision itself was bound up with political question and speech or debate but but your hon even if the court iced it despite the admonition by the consumers union court itself that it thought it would be improper to view it a political question or a speech  case i should say before proceeding that our case does fall neatly within that distinction and for that reason that reason alone we prevail under the speech or debate clause but you're o the the reason that it doesn't fall neatly within that temporal distinction is the rd basis for distinguishing that case and it in the court emphasized in consumers  that the process by the period of this association in that case of policing pres access to the house chamber took place on an ongoing day in day out basis as a core put it in  regular course of the legislative process and so in that regard in that regard what what that association was doing on a daily basis was much the same as what the house chaplain does essentially every day as it opens legislative sessions which was at issue before this court in the barker case and so the question simply boiled down to him both the e communicative processes of the house the court in barker said no the legislative activity is not the court and consumer of union said yes it is so is that how you deal with the temporal part of consumers union because consumers union in some ways could be described as parallel to discipline and about also involved rules and then the particular case involved a particular implementation of the rules after the rule was adopted and that's the way you describe this case to you now one thing you could say and potentially as ever that happened fairly regularly so every time you were implementing the role you were also kind of carrying on this daily interaction with the rule whereas here you could you could argue that it's more sporadic but then when  when a vote is taken that involves if more than one is vote is taken that involves proxy votes then you're necessarily in this kind of in between period where you're anticipating another proxy vote coming along later also you you you're making a very very fair point and i think that the walker case does indeed understand what was happening in consumers union as not falling in to this  distinction that the court emphasized in that case because if it had viewed it that way it would have had a very hard time not understanding what the what the periodicals association was doing as is  versus legislative act dichotomy and walker did say in reference to consumers union that consumers union immediately concern house consideration of proposed legislation and so it's looking at be a fact of the press gallery role in the context of the legislation that's being considered while they folks are being seated right and so in a way it's talking the parallel you would say as well by parity of reasoning here the house rule has to do with the cap maybe with the tabulation of votes in connection with a proposed legislation that's yet to come to pass well that's that's that's that's right your hon but if i'm completely following the court's point but but you know and i would i would direct the court's attention to how ben judge against bird regulation of very atmospheric with lawmaking deliberations occur your honor that that point in and of itself sprang from the reality the the delegated responsibility for the period of socialization was too close to pursue protect legislators themselves in the chamber from the harassment of  news reporters actually those masquerading as news reporter who actually lobbying and otherwise important in the legislature so the very atmosphere of alicia lee process was at stake in that case that is enterable the court speech or debate here again i would reiterate that the actions taken by the congressional by the  has worked well so we're going to mean that that does that does get in in some measure to the merits of whether proxy voting is or isn't something that falls within the compas of some of the house permitted to allow and it can i can i ask you shift gears for just one second and ask you one question about standing although i don't i don't want to i don't want to take my colleagues away for a speech or debate if they have some questions on that bit of a standing question for you and i know that the district didn't ultimately rule on standing but the issue was before and both sides briefed it amply in ark and in our court is is your theory of standing doesn't mean that any time it's easier for someone else to cast a vote then there's injury for the person who has the legislator who's bringing the claim because i'm not saying that's necessarily wrong but it seems to me that's effectively your theory because your idea is are no votes would carry more weight if somebody who had a yes vote couldn't vote and so something that makes it a little more difficult for that person to vote say harder to show up to vote you know any anything that that makes it easier for someone else to cast a vote seems like a potentially imposes an injury on somebody  for purposes of standing that proxy votes if they are invalid that counting an invalid vote an invalid vote not not a vote that never showed up and got cast because it was difficult logistically for that member of congress or whatever or that citizen to get to the polls but but rather if as as a matter of constitutional law the vote itself is an elohim if it's not constitutional for it to be cast which we are submitting it is the case with proxy votes then counting that vote anyway that is what creates the dilution and the constitutional injury if i don't believe it would be and i'll be honest i  thought through the point the core is making completely but i don't think it would be hard to draw a line between bokes then our as a constitutional matter or a legal matter the votes of all of the ballot box all of them that are cast and that creates the the injury recognized by this court and michael and i think i understand why in validity are not a sort of saying that this is the best means your standing theory is wrong i'm just trying to understand the implications of it and not understanding why in validity of a vote gives rise to a different injury in kind than any time it's easier for someone else to vote because the injury comes from the fact as i understand it the injury comes from the fact that the legislator who's bringing the claim would have gotten a result on the vote but for the fact that somebody else cast a vote that ended up  lead like like like happened in cooper it's that kind of injury that we would have won except that somebody else got to vote who should have gotten the voter who cast that invalid vote or whatever it is but because they got the vote the result that i want not come to pass that and that's the theory of injury as i understand it and that would encompass that's not a theory of injury no you know you're ok that that that that is an injury that's the ultimate injury yes from the counting of  and counted was not decisive now there's been many decisive proxy votes in the house thus far decisive not in the context of yielding an actual wall yet but the discord in michael and before and in bender john recognized is the is the injury that flows just from the casting and counting of an invalid vote and i think that this course decision and gags against karo actually acknowledges that is the injury regardless of whether the vote itself was decisive now it's certainly true and now it's subsided in the hope that i have a just one sort of basic question the theory here as i understand it is basically a geographical notion that  because in history you had to be on the floor as a duly elected member in order to cast the vote any change as to that geographical aspect necessarily trying to put your words not mine a vote that cannot be counted and you cited a number of authorities i'm wondering though over history you know originally everybody had to ride a horse so only certain people who had a horse could get there and snow or whatever might prevent that person from a then we got airplanes trains so a lot more people were able to get there then at the time of the founding i'm wondering about this notion of two hundred and three years what what the framers had in mind in terms of making certain that voters were duly represented in the halls of and your answer seems to be only if their feet are on the soil of the floor of one of the houses yes you are  we think there's two very important supports for our argument that actual presence in the house or senate chamber is necessary for the for for  an individual member to be counted towards a quorum or to cast a recorded vote one is the language of the constitution itself and yes it was written at a time when  when it was much much more difficult of course to to attend the sessions but but nonetheless but it was a time when proxy voting was well known and was practiced in legislature s before the framing of the constitution but nonetheless the the framers in one passage after another from article one as we say to the rd amendment use what we would submit to you judge rogers is command of the constitution provisions that actual presence is necessary to to cast a valid vote or or to be counted towards  understand the word presence and what exactly that means because again as the chief judge points out getting a little into the merits here  the quorum requirement and the fact that there is a quorum at twelve noon doesn't mean there has to be an actual quorum physical presence at three pm when the vote is taken that's the way the chambers have operated under their rules and the fact that proxy voters voting existed that congress the house chose not to use it doesn't necessarily decide the question that's what i'm trying to understand you know use pen and quills well we don't use that anymore and so there is some movement here and i want to understand this physical presence as geography because it's as i say boots on the ground is is what you're from from the federalist papers concerning why they chose to set it at a majority is rather supportive of the proposition that actual boots on the hunted just run his as you phrase it was the understanding the command of the constitution because the the there was a debate over what the quorum requirement should be and a majority was viewed as one that best balanced the realities of the distance and the relative difficulties that individual members of the of the body would have to negotiate in order to be present on a legislative day it doesn't mean that an action it must be established st by actual presence there is simply no debate or dispute among the parties on that and any time any member suggests the absence of a quorum it must be again established by actual presence but it is true that once it is established a presumption attaches and  quorum is presumed to persist until such time as any member suggests it to the contrary and requires that the actual presence  is is one that is common to legislatures long before it was adopted by by the bodies of our congress as as it is a necessary presumption and a method by which legislative bodies can proceed without constantly constantly counting noses to determine  congress could not operate no we we believe that congress has operated throughout history even in the presence of then are worse by orders of i'm just trying to push you here so i know how far your theory goes there is a play and go and convene in a geographic sense chanelle system as i understand your argument congress simply could not function because no one geographically could get to the floor result in congress you know having to find some way together in person as it has in every crisis that it is faced throughout american history my hypothetical is we have a new crisis we haven't ever experienced this in the past and there really isn't any disagreement in my hypothetical that the plague is such  that the house and senate have to shut down under your theory i just want to understand under my hypothetical and you're saying covert is not such a situation and i'll take th hypothetical is that the result of your theory here your honor i have to give you the same answer that jefferson hamilton  and madison gave to washington in seven thousand and ninety seven dollars in the yellow fever play and it was that in jefferson's words even if the congress has to meet in philadelphia the seat of government have to be taken in cont answer to judge rogers is hypothetical assume that if anyone leaves their house they will die soon not five but that all my question is does does that mean that congress simply cannot beat according to your theory good and my theory your are believe that the constitution will have to be amended to permit them to me and constitution can't be amended unless two houses of congress support the amendment with a supermajority and if they can't meet they can't do that right now that may be a very good reason for for congress and the country to consider such an amendment in a time when it can take place at their fair enough the one last question on the merits but before i want to go back to standing the supreme court recently said in in its way their decision be present in a meaningful way without that presence being physical in the traditional sense of the term what what do you think about that you're i think that statement was made in in a very different context it was made in the in the context of corporate presence the presence of a corporation in a particular a  retail corporation that has retail sales even if it doesn't have an individual or an office present in a particular location and a corporation can have many different places of presence it can even have and the court has struggled with how to identify a single place where a corporation is presence i think ultimately honor if you if your law clerk were sitting in your chair and were asking the questions by your proxy you would not be present but you'd be fine with a house rule that allows voting quick standing questions and then i'll get out of the way here you don't represent a house of congress you don't represent even an entire committee of congress your clients are i believe  all members of congress from one political party i guess it seems to me that this is yet another case where one group of politicians sparring with another group of politicians and they want a federal court to pick a side whether we do this under and tell me why i shouldn't view this case as a group of republican representatives trying to get their way in congress against a group of democratic and would i be interpreting your answer correctly if i interpret you to be saying michael says it's ok for one segment of politicians to use a federal court as an instrument of going on here well i don't know what's going on here is one set of members of congress are saying that they are being injured by a different set of members of congress  citizens voters in that district have delegated their power through the representative that they elected to express their voice in the hall don't want to call the court's attention to the micro decision again where the court addressed the widespread nature of the of the injury that was before it the claimed injury before it from dilution of the voting power of members of congress if it touched every member of congress and  court with my friend mr cooper with you my good friend for several decades your honors i had a lovely stirring introduction which i'm going to pass because i want to jump right in and answer the questions that you have asked  if you want later i can email you the wonderful introduction to the st point right off is to get to some of the questions from the the chief judge st remember  number of times it doesn't matter who the actor is it's the act and so the walker decision says quite a few things is as not from this trooper has mentioned but just above even the point that the  from judicial review by virtue of the speech of a clause so here as judge contrary is found it's hard to think of something that is more interger real to the legislative machinery th of voting and remember that's what this case is about congress the house has made a rule an internal rule about how members can vote and so again i the this court said that it was looking at whether constitutional rights and therefore a question proper for judicial consideration necessarily as presented we need not pause to consider such a formulation in the abstract but turn to the effect of this feature debate clause to settle whether despite the claim of constitutional violation tenuous as we have noted or otherwise this case is is yet not just this bill so i think that that makes clear that that is holding of consumers union and that was indeed picked up the line but in powell the supreme court drew the line at the they're the as i recall the the doorkeeper and maybe the sergeant in arms it said they can be sued under the circumstances they were remember represented the court had the house had said they were not going to seat represented powell so he was not allowed to vote or participate or receive a salary in any way and under those circumstances where he had been kicked out of congress that then was considered close enough that speech or debate did not bar a suit against those officers this is a come out differently  to come out differently if they let pal do everything a member of congress does except they just don't that the majority of the house could single out a single member of the house and say we will pay you we will listen to you we will let you have an office in the staff will let you walk around and come on the house floor but we will not count your vote and you have no way you have no remedy in a court well again if if the if paolo's controlling it then the nats who would be could not simple however remember that the speech or debate clause was inserted into the the new pal the new representative pal be able to get a remedy from the court and you know you're out of the st words out of my mouth in response or to be that's not this case of the if there is discrimination against particular members of congress that would pose a very difficult case in a very different case however as i was starting point out remember that speech or debate is absolute so for example this court the judges on this court have absolute immunity it doesn't matter if i say but you discriminated against me on the basis of my race that is my claim i thought i am that is exactly my claim and you will can say that sounds good and you may even be right but we are absolutely immune so i take that in and if i'm understanding your answer and my hypothetical would be a different case of course and you're not taking up a farm yes or no on whether or not  court could decide that case but i think i hear you saying a court probably could not provide a remedy to the power in my hypothetical except the the remedy remember there would be very likely a remedy for a plaintiffs who came forward who was of affected by a law if there were a law passed and individual members of congress were discriminated against then very likely people who were affected by that law they could sue and they wouldn't sue the members of congress remember they would then be suing the executive branch which would be carrying out the law so there is a remedy your honor even with the individual who brings  suit if it's a speech that's true for standing that's always a way around but actually around standing because that's what happened with with rain sequin and converse in new york but does that work for speech or debate purposes because if the individual is suing  the individual action would be brought against who the sergeant at arms then the you are the question the hypothetical that i was posing your honor is congress let's say the house says we're not going to that statute was unconstitutionally and they would presumably be suing the executive branch which reinforcing is actually against them so that that was the the the remedy that i was posing ok so then can i just go back to power for a nd so then if if we assume that the answer to power all the hypo that judge walker post here if we see that the answer to that is no speech or debate is absolute as he described it and therefore in a situation in which the remaining members of the house decided that powell was not going to be able to vote but he could set and then that's the you can't bring that action because speech or debate would prevent a remedy there then what's the difference between what because powell did allow the suit so the difference is that you can't be excluded altogether or you can explain be excluded from voting for speech or debate purposes and if you screw it all together there's no speech to a problem if you exclude from voting that there is what i would say in how the quarter the supreme court obviously believed that the combination of circumstances made it so that it drew a fine line and it said under those circumstances where the is being excluded and not a remember that was a key part of the decision and not hate that person can sue this case and so if the facts of that case change with the supreme court come out differently i and it seems like one thing the gravel was doing is it's taking the three cases that have been discussed in the briefing powell and dombroski and kilborne and at least in some measure and there's a lot going on in gravel but in some measure  there's a reference made to pension on individual rights usually rd parties possible different because it's hard to call how a complete rd party but right but what was at stake was individual rights and according to the supreme court and so is the theory behind that potential distinction between exclusion altogether and exclusion as to voting that insofar as it excluded altogether that impinges on individual rights insofar as it excluded where you're included but you're executed for purposes of voting then it transfers the case from one about individual rights to want to about rights as a legislator a potential point and that is and so there is there would be if under those circumstances the house chose to search feature today obviously a very difficult case to to determine this case again there's no discrimination against anybody remember that this method of voting has been made available to all members of the house so wherever we draw the line this case is nowhere close to it because it is quite different since there is no individualized discrimination can i take you to stand in for a nd unless i don't i don't want to  move a speech or debate too quickly for yes colleagues have questions on that than let me take a stand for just one second so let's let's assume i know you'll resist the assumption but i'm just asking you to assume that you're soon that we think michael is still good post rain and i know you've got your argument that says michael should be rethought after raines but let's assume that michael still got if the rule and michael wore that not only did the representatives of the territories not only are they allowed to vote  but in order for them to vote they have to vote by they have to vote by proxy and then somebody another legislator challenges the ability of them to vote and the way that michael caine came out came about then under your standing theory would it be that and so far their challenge the ability of the territory representatives to vote altogether their standing and so far as they're challenging their ability to vote by proxy there's no standing so the the st answer on michael i hope i'm responding to your writing but i'm saying that they're not but they can vote but they have to vote by proxy right so then that makes it quite different your honor because then you're talking about is this court going to review rules set by congress on how to vote now it still might be a question of there might be standing there if there is individual life discrimination against some members and as you know the footnote in raines leaves that open and so it may very well be that that would be enough to to bring standing so if michael is still good law if you start adding people to the voters michel would mean that that there is standing for that if you individually discriminate rein says that might i guess i guess what the i'm trying to i'm trying to tease out the following point to me which seems which seems like a question raised by you're standing there which is that i know you've got this denominator notion that if you add to the denominator then they're standing but if the denominator stays the same then there's not phantom because the people who are complaining still got their one thousand four hundred and thirty seven but in a case like that in a case in which somebody is not supposed to vote but then they're allowed to vote by proxy it seems to bring both of those together because the person who is complaining they're just saying look that other person should have gotten a vote they should have gotten cast as vote and you could say in one or two ways you could say a base should have been allowed to cast a vote at all because they're  vote and then you could say be well regardless of whether they're eligible or not they cast an invalid vote still that vote shouldn't be counted and it seems to me your standing theory tries to draw talismanic distinction between those two modes of argument and i'm not sure i understand the talismanic distinction when you're talking about injury because the person who is complaining about the vote is still being injured in the same way that somebody else whose votes shouldn't have counted got to be counted your honor i think a more appropriate way to look at it open the polls are now earlier and keep them open an hour later under mr cooper syria and i believe i presume indicators he would say what with that vote under the prior  would not have been valid if you vote an hour after the polls closed your vote doesn't count but we've but the board of elections says we're going to keep open an hour later could anybody sue would anybody have standing to say i'm planning to vote in the middle of the day how dare you make the polls open an hour longer so that registered voters have it easier for them to vote if it's the old rule applied their vote would be invalid well nobody would think that they're standing in that circumstance so it's not a question of a like in michael where you're saying we're going to take some people who under your claim are not eligible to vote they can't vote whether they vote by proxy or by time whenever that's quite different from simply saying we're going to make it easier we're going to make the democratic process easier for people to vote people who are otherwise completely eligible to vote so i think that's the a very clear distinction i understand the distinction i guess it's not immediately apparent to me how much work that distinction does be the person who's injured because it just seems to me they're injured and what could be described as the same way which is that there affirmative vote isn't getting the same mileage because some other vote was counted that shouldn't have been supports this because this opportunity is open to everybody all the eligible voters were saying ok everybody who is eligible to vote we're not making more people eligible we're not doing that we're giving you an additional opportunity or ability to exercise your vote that's very different and and i don't think and i fairly sure miss it just seems like it's a man take because in some ways you are making more people eligible to vote because a predicate to casting a proxy vote is that the person has to say that they couldn't have been there right and then says they're unable to vote now remember your honor the person could say  this is a really important vote coming up if i travel to washington and go onto a crowded house floor i might get sick and i'm i died but i'm going to do it because you left me no choice now i think that person is unable to vote in the way that we under in the house we understand the proxy voting so you could say yes fine if there's no proxy voting remote voting i'll get there and you watch me die does that does that mean that you know that then changes things so if if what you're saying is what i think mr hooper's clients are saying is we insist and then the framers insisted that everybody can only vote in one way and that is even if it makes them vulnerable to death from a raging pandemic that's it that's what the framers meant in addition if i could add one more point your honor i know you didn't ask the city about this but i think it ties in very well remember what we're arguing is michael is distinguish and i know your hypothetical said ok suppose that michael is was not overturned by rained but remember what mr cooper is doing here is he is extend he has seen you to extend michael to a different situation and even if rains did not expressly overrule michael surely it would be very strange for this court after arrange to extend my call to a new factual situation quickly scan my notes because i did jot down several things i was going to say ok do you mind your honor the one thing i wanted to do was the questions about  time for you don't from there but i soon that michael was overruled by raines what what's your best argument for standing in that case assume i think it was overall how can i still rule for you understanding question if it was overruled by raines despite this court's many many statements to the country including judge rogers recent opinion for the in bank court  injury in fact and it's in and you're out of that that that is mathematically inescapable and so that would be my argument to your i'm not sure i have a case other and the parent that it will says congress is execution of internal rules as legislated well that that parent that a call from wrangle simply can't be squared with the case that it cites consumer union it is a drive by comment and the court can't place a stock in it if it even if it could it because consumer consumers union you know are recognizes this temporal distinction but even if it yes there would be no standing if mr powell had been stripped of nothing other than his right to vote you think i think i'm am also heard him stand up to the hypothetical that i've offered an extreme one at mit and that you have a rule passed where women cannot vote in these makes a point that it's absolutely not i don't think that spite hits it wouldn't matter i see my three minutes is already fled by your honor show thank the court for its time and attention thank you thank you c ounsel thank you to both counsel for the argument this morning will take this case under submission thank you very much