2026 401(k) Catch-Up Contributions and the Quorum Clause

Starting in 2026, those with significant prior year W-2 incomes must make catch-up contributions to 401(k)s and other workplace retirement plans as Roth contributions. 

Mandatory Roth catch-up contributions deny many workers 50 and older a valuable tax deduction. 

The new rule originates with SECURE 2.0, a component of the Omnibus bill passed in December 2022.

The validity of the Omnibus bill has been questioned. In 2023, the Attorney General of the State of Texas sued the Department of Justice claiming that the House of Representatives did not have a sufficient quorum under the Quorum Clause to enact legislation when the Omnibus was passed. I share the Attorney General’s concern and have written to the government expressing that concern. 

Were the Omnibus were to be invalidated on Quorum Clause grounds, the rule requiring mandatory Roth catch-up contributions could not be sustained.

Judicial Results to Date

In the federal courts in Texas, four federal judges have weighed in. Two have opined that the Omnibus was passed in a Constitutionally qualified manner consistent with the Quorum Clause. Two have opined that the Omnibus was not passed in a Constitutionally qualified manner since the House did not have a sufficient quorum at the time of the Omnibus’s purported passage.

First, in February 2024 a federal district court judge determined that the Omnibus was not passed in a Constitutionally qualified manner. In August 2025, that opinion was overturned 2 to 1 by a three judge panel of the Fifth Circuit. 

SECURE 2.0 Lay of the Land in September 2025

Here is how I assess where we are in September 2025. 

First, it is likely that SECURE 2.0 will never be overturned. While I cannot say that definitively, I feel rather confident that it will survive, and I would plan around that outcome.

Let’s play out the future. As of this writing, I do not know if Ken Paxton, the Attorney General of the State of Texas, will appeal the August decision to an en banc panel of the Fifth Circuit and/or to the Supreme Court. But assuming it goes to the Supreme Court, just for analytical purposes, I suspect at least two of the institutionalist bloc of Justices Roberts, Kavanaugh, and Barrett would side with both the Biden and Trump Departments of Justice against overturning the Omnibus on Quorum Clause grounds.

From a planning perspective, it’s time for higher income W-2 workers to understand that they must make any 401(k) or other workplace retirement plan catch-up contributions as Roth contributions in 2026. The IRS confirmed this in recent guidance. 

The threshold to be considered high income for this purpose is likely to be slightly more than $145,000 of W-2 wages from that employer in 2025. I suspect that in October the IRS will come out with the exact threshold 2025 W-2 wage threshold amount applicable in 2026 (this is adjusted based on inflation). 

In late 2025, those subject to this potential restriction may want to prioritize W-2 income reduction planning opportunities such as making remaining 2025 401(k) contributions as traditional contributions to potentially fit under the 2026 threshold. 

Silver Lining: Required Minimum Distributions

There’s a silver lining to SECURE 2.0 likely surviving Quorum Clause concerns: delayed RMDs. For those born in 1960 or later, SECURE 2.0 delays the onset of required minimum distributions (“RMDs”) from age 72 to age 75. 

This delay requires all of us to step back from the inchoate fears about taxes in retirement and reassess RMDs and their impact.

Conclusion

While the final path of the Omnibus Quorum Clause litigation is not certain, it’s tilting heavily towards the Omnibus, and thus SECURE 2.0, surviving concerns about the House of Representatives’ use of proxies to establish a quorum in December 2022.

From a financial planning perspective, it is time to plan for higher income workers being required to make 401(k) catch-up contributions as Roth contributions. Further, it’s quite reasonable for those born in 1960 and later to plan on RMDs beginning at age 75.

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