Maybe the Speaker of the House Must be a Member of Congress

Posted in: Constitutional Law

Since last week’s unprecedented ouster of Kevin McCarthy as Speaker of the House of Representatives, two leading candidates have emerged to take his place: Republican House Majority Leader Steve Scalise and Republican Judiciary Committee Chair Jim Jordan. Other House members were also reportedly considering a run, but after former President Donald Trump endorsed Jordan, anyone else seems like a long shot—at least for now. As we saw in January when it took fifteen rounds of voting for McCarthy to secure the Speakership, the Republicans’ slim majority in the House and fractious caucus could imperil any candidacy.

Should neither Jordan, Scalise, nor any other House member win election swiftly, we can expect some observers to float an outside-the-box idea: that the House could choose as its Speaker someone who is not a current member of Congress. Indeed, before Scalise and Jordan emerged as the frontrunners, Representative Marjorie Taylor Greene proposed electing Trump to the Speakership. Trump himself has even teased that he would accept the role if drafted.

Nor is Trump the only non-member whose name has been floated for the Speakership. Despite her deeply conservative substantive views, former Representative Liz Cheney might attract substantial numbers of votes from Democratic members whose respect she earned for her courageous role as vice chair of the House Select Committee on the January 6 Attack.

But wait. Doesn’t the Constitution require that the Speaker of the House be a member of the House? Conventional wisdom says no—and thus every time the Speaker’s chair is vacant, politicians and pundits remind the public of the possibility of filling it with a non-member.

And yet, upon close examination it appears that the conventional wisdom might be wrong. As I explain below, the view that the House could choose a non-member as its Speaker rests on a highly contestable reading of the Constitution and our nation’s history.

What the Constitution Says

Article I, Section 2 of the Constitution provides that “[t]he House of Representatives shall chuse their Speaker” without specifying any limits on the qualifications for the position. However, other provisions do specify who can serve in various offices. Representatives, Senators, and Presidents must be, respectively, at least 25, 30, and 35 years old. A House member must have been a U.S. citizen for at least seven years and must live in the state they represent when elected. A President must be “a natural born citizen.” Etc.

In the 1969 case of Powell v. McCormack, the Supreme Court held that the House may not impose additional qualifications on its members beyond those set forth in the constitutional text. Accordingly, the conventional wisdom goes, the House likewise may not impose additional qualifications for Speaker beyond those set forth in the Constitution. And because the constitutional text does not list any such qualifications for Speaker, the House may choose (or in the original language, “chuse”) anyone it likes, even a non-member.

Yet that logic, if accepted, would have absurd consequences. Could the House choose a dead person as its Speaker? If you think the answer is no because the term “Speaker” implies a present ability to communicate, how about an African grey parrot? Such birds can speak and, by contrast with some current members of Congress, are highly intelligent. How about an AI tool like ChatGPT? A tongue-in-cheek article in the Washington Post last week raises such possibilities.

The Post article quotes me as describing these ideas as “far-fetched,” which they certainly are. They also serve as a reductio ad absurdum of the view that textual silence alone suffices to support the conclusion that a non-member can serve as Speaker. The lack of explicit qualifications for the position does not mean that there are no implicit qualifications.

Original Understanding

Where can we look to fill in the blank left by the Constitution’s silence on the qualifications for the Speakership? Constitutional lawyers typically turn first to the original understanding. It does not support the conventional wisdom.

A 2019 law review article by attorney Russel Spivak makes a serious but ultimately unpersuasive argument for the conventional wisdom. In discussing the original understanding, Spivak notes that when the U.S. Constitution was proposed and ratified, state constitutions also failed to include express textual qualifications for their Speakers, thereby, he says, implying that the U.S. Constitution’s framers and ratifiers took for granted that a House Speaker need not be a member of the legislature. Yet that inference follows only if the silence in state constitutions was understood at the Founding to imply the power to choose a non-member Speaker. Otherwise, the lack of express qualifications in state constitutions would be consistent with implicit qualifications—pursuant to the same kind of reasoning I described above for the federal constitutional text.

Spivak points to one state in which he says that the legislature chose a non-member Speaker—but he appears to be simply mistaken about even that one example. Spivak writes: “The only mention of a Speaker in the [Federalist Papers] appears in The Federalist No. 50, in which [James] Madison writes that at that time ‘[i]n Delaware . . . [t]he speakers of the two legislative branches are vice-presidents in the executive department.’”

Not to nitpick but the relevant quotation appears in Federalist 47, not Federalist 50. More substantively, Madison was not saying that the Delaware legislature chose non-members as the Speakers of its two legislative chambers. Under the Delaware Constitution of 1776, which was operative at the time, the Speakers chosen by the two legislative chambers were then given executive responsibilities as well.

In Federalist 47, Madison was responding to critics who objected that the new federal Constitution would lead to tyranny because it did not completely separate legislative, executive, and judicial powers. He pointed to features of state constitutions—including Delaware’s—that allowed for even greater overlap of powers and functions without leading to tyranny. Madison was not claiming that the legislature of Delaware had chosen non-members as Speakers of its House of Assembly or Legislative Council. Thus, Spivak adduced no actual example of any state legislative body choosing a non-member as its Speaker.

Post-Enactment History and Functional Considerations

So much for evidence from the Founding period. Constitutional lawyers often look to post-enactment practice to, in Madison’s phrasing in Federalist 37, “liquidate[]” the inevitably “more or less obscure and equivocal” language of the text. Historical practice can also place a “gloss” on the bare text. Legal scholars sometimes distinguish between liquidation and gloss, but for our purposes we can set aside these nuances. The important point is that the House of Representatives has never chosen a non-member Speaker. Indeed, on the rare occasions when a member has proposed a non-member as Speaker, the proposal garnered virtually no support.

To be sure, the historical practice is not fully dispositive. It is possible that the House never chose a non-member Speaker because it never seemed like a good idea, not because House members thought that doing so would be unconstitutional. After all, everything Congress does is unprecedented until it happens for the first time.

Nonetheless, we should not so quickly dismiss the potential implications of liquidation and historical gloss. At various points in U.S. history, there have been potential non-member Speakers who could have led the House more effectively than the member who actually got the job. The fact that the House never chose or even seriously considered any such candidate might well bespeak its view that such a choice was constitutionally impermissible.

The possible constitutional implications of historical practice overlap with another source of constitutional guidance: functional considerations. My former colleague Georgetown Law Professor Josh Chafetz invoked such considerations in the same Washington Post story in which I pooh-poohed the notion of an AI Speaker. He explained: “The speakership in the United States—in contrast to, say, the British model—has long been about leadership of the majority party, not just about the formal mechanics of presiding over the chamber.”

In other words, historical practice and contemporary functional considerations reinforce one another. The House might have treated the Speaker as a ceremonial figure and/or a parliamentarian—analogous to the role the Chief Justice plays during presidential impeachment trials in the Senate. However, with the emergence of a two-party political system as early as the Washington administration, it became clear that the Speaker would be drawn from the ranks of the majority party in the House.

Practical Consequences

In challenging the conventional wisdom that the House can choose a non-member Speaker, I do not mean to espouse the opposite proposition. In my view, the constitutional text is unclear, while the original understanding, historical practice, and functional considerations all undercut the assumption that the House can choose a non-member Speaker, but they do not firmly establish that such a choice is unconstitutional.

Moreover, the courts might well say that whether the House may choose a non-member Speaker presents a nonjusticiable political question. Thus, as a practical matter, the House could probably get away with choosing a non-member Speaker, even if doing so would be unconstitutional—in the same way that the Senate could convict a President on impeachment charges that he jaywalked, even though jaywalking isn’t a high crime or misdemeanor, because the courts treat impeachment challenges as posing nonjusticiable questions. The conclusion that a matter is a nonjusticiable political question gives political actors the authority to determine constitutional meaning, not to ignore it.

Whether an unprecedented decision to choose a non-member Speaker of the House would violate the Constitution is unclear, but the conventional wisdom that it would not rests on a fallacy. It falsely assumes that the lack of express constitutional language implies that the political actors can do whatever they please. Liberals reject that assumption when they say the Constitution impliedly protects a right to privacy. Conservatives reject it when they say it impliedly limits Congress’s power to restrict the President’s ability to remove executive officers.

The Constitution might or might not allow the House to choose a non-member as Speaker. But the fact that the Constitution does not expressly forbid such a choice should be the beginning, not the end, of any inquiry into the permissibility of such a choice.

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