The Supreme Court on Tuesday refused to revive a lawsuit from three House Republicans after their pay was docked for not complying with a pandemic-era mask requirement on the chamber floor.
In a brief order without any noted dissents, the court let stand a lower ruling that tossed the constitutional challenge filed by Reps. Thomas Massie (R-Ky.), Marjorie Taylor Greene (R-Ga.) and Ralph Norman (R-S.C.).
The three conservative lawmakers were fined $500 in May 2021 after flouting the House floor mask mandate that was put in place amid the COVID-19 pandemic, kicking off a years-long attempt by the trio of lawmakers to get the penalties lifted.
House rules fined lawmakers $500 for their first infraction with the mask mandate and $2,500 for subsequent breaches to be withdrawn from their yearly pay. Greene racked up more than $100,000 in fines, according to The Atlanta Journal-Constitution, which the Georgia Republican referenced in a statement on Tuesday.
“Even though I was fined over $100,000 by Pelosi, I wouldn’t change a thing,” she said.
The lawmakers were protesting the House floor mask mandate, highlighting the fact the Centers for Disease Control and Prevention (CDC) had recently said individuals who are fully vaccinated did not need to wear masks in most public settings. At the time, Norman said he had been vaccinated, Greene would not reveal her status, and Massie said he would not get the vaccine because he had COVID-19 antibodies from a previous bout with the illness.
The Republicans appealed the sanctions later that year, but the House Ethics Committee upheld them in July 2021.
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A federal judge in D.C. tossed the trio’s lawsuit in 2022, arguing that their case did not have any basis because then-Speaker Nancy Pelosi (D-Calif.) and others enforcing the mask mandate could not be the target of legal action for choices they made in their jobs as government officials. In June, the U.S. Court of Appeals for the D.C. Circuit affirmed the ruling.
The Supreme Court is now the latest body to shoot down their lawsuit, two years after the House lifted the mask mandate in February 2022.
The trio of lawmakers contended their deductions violated the 27th Amendment, which prohibits salary adjustments for members of Congress from taking effect until after the next election. It was ratified in 1992 as the most recent addition to the Constitution.
“While the Twenty-Seventh Amendment is commonly, but wrongly, thought of today as merely a limitation on Congress’ ability to vote itself a pay raise (as will be demonstrated below), that was merely one of its purposes,” the lawmakers’ attorneys wrote in court filings.
The Supreme Court has never decided a case interpreting the amendment, and the Republican lawmakers insisted the time had come for the justices to do so.
“In addition to concerns about pay increases, the Founders were also greatly concerned that diminishing congressional pay could be used to pressure Members from exercising independent judgment, which could prevent qualified men of modest means from serving in the new national legislature,” they told the justices.
By refusing to hear the House GOP lawmakers’ appeal, the Supreme Court sided with the House’s general counsel, representing Speaker Mike Johnson (R-La.), who was automatically substituted as the defendant upon taking office.
Johnson’s attorneys urged the justices to let the lower ruling stand, which found the lawsuit is barred by the Constitution’s Speech and Debate Clause, which provides a shield against lawsuits and questioning for things lawmakers say and do as part of their legislative work.
“The rule was controversial, and all Members of the current House Leadership voted against it,” they wrote in court papers. “But this case is not about the wisdom of the rule or whether it was based on sound science. Rather, it is about whether Petitioners’ claims are subject to judicial review.”
Massie told The Hill that the case presented “a thorny issue,” but he criticized the decision to let the lower ruling stand.
“Although the case was initiated due to enforcement of Pelosi’s mask rule, there are broader issues at play in this case. By allowing Congress to be shielded by the speech or debate clause, even for actions explicitly prohibited by the Constitution, the courts have rendered the 27th Amendment unenforceable,” Massie said.
The three-judge D.C. Circuit panel — which comprised two Democratic appointees and one Republican appointee — declared the enforcement of the mask mandate was a legislative act, ruling the defendants could leverage the Speech and Debate Clause to get the suit tossed.
“We cannot consider the merits of the Representatives’ constitutional arguments because their suit concerns legislative acts protected by the Speech or Debate Clause,” the panel wrote in its unanimous ruling.
The trio of Republican lawmakers who sued claimed such a finding would lead to wide-ranging consequences.
“To let the D.C. Circuit’s opinion stand would be to render the Twenty-Seventh Amendment non-justiciable in violation of this Court and the D.C. Circuit’s own precedents and to open the floodgates to unfathomable discipline,” the lawmakers’ attorneys wrote in court papers.
“The House Rules, under this Doctrine, could impose physical punishment, flogging, or even more medieval forms of punishment, upon members and, under the D.C. Circuit’s precedent, no judicial remedy would be available, the Eighth Amendment notwithstanding,” they continued.
Updated at 7:05 p.m.