Ten House Republicans, led by Rep. Chip Roy (R-TX), told an appellate court this week that the House’s rules for proxy votes during the pandemic were unconstitutional. They also said that Senate Minority Leader Mitch McConnell (R-KY) had flip-flopped about these rules.

The politicians made their case in an amicus brief written by lawyers from the Mountain States Legal Foundation. This came after McConnell sent in his own brief in a case that could overturn a $1.7-trillion spending bill that Congress passed in December 2022.

“Amici are especially worried that other members of Congress, like Senate Minority Leader McConnell, have asked this Court to basically hold that even the worst legislative procedures can’t be questioned by the courts,” the lawyers wrote.

The case is being heard by the conservative 5th U.S. Circuit Court of Appeals. It is about whether there was a quorum when more than half of the House voted on the joint bill by proxy. A lower court had already said that there wasn’t a quorum, so they decided in favor of Texas Attorney General Ken Paxton and against the Department of Justice. The DOJ has taken the decision to court.

McConnell agreed with the DOJ. In August, he wrote a supporting brief saying that he strongly disagreed with proxy voting but did not believe the courts should have any control over it.

In 2020, however, McConnell gave a different message when he told former House Speaker Nancy Pelosi (D-CA) that her policy on proxy votes could put the country in a constitutional bind.

According to McConnell, anything the House does that they can’t show they have a real number will be questioned by the Constitution. He said this in a speech on the floor of the House at the time.

In his second supporting brief in the case, Roy, a Republican from Texas, brought up McConnell’s comment.

“His comments showed that he understood the House’s constitutional duty to get a majority of its members together in the halls of Congress before doing the People’s business.”

At this point, though, McConnell has changed his mind, according to lawyers for Roy and the other lawmakers.