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In the House but Not of the House?

If you haven’t heard, there’s a job opening on Capitol Hill. It pays well but, as the outgoing incumbent might tell you, the management duties are pretty stiff. The job, of course, is the Speaker of the House. John Boehner’s surprise announcement that he would be resigning both as legislative leader of the House of Representatives and his seat representing Ohio’s 8th Congressional District has set off a scramble for his successor. The heir apparent, Kevin McCarthy (R-CA), the next most senior party leader, at first seemed to have a lock on the job. But McCarthy’s missteps have caused at least two other Republicans throwing their hats into the ring.

With the Speakership election not as straightforward as it seemed, some have even raised what had been up until now an arcane issue: Must the Speaker of the House be a member of the House of Representatives? There are good reasons, and constitutionally based arguments, for responding in the negative. Over two centuries of legislative practice to the contrary notwithstanding, the Speaker needn’t be a sitting representative, though there are limitations on who can hold the office.

Let’s start with the controlling constitutional provision. Article I, Section 2 of the Constitution says, “The House of the Representatives shall chuse their Speaker and other Officers[.]” The absence of an explicit limitation on whom the House can “chuse” has led some to argue that they can “chuse” whomever they want, provided the selection doesn’t violate the Incompatibility Clause (Article I, Section 6), which requires that “no Person holding Office under the United States, shall be a Member of either House during his Continuance in Office.”

During the last government shutdown debate, legal scholar Sandy Levinson argued that one way to avoid the seemingly endemic dysfunction of Congress would be to have the House put in as Speaker a “distinguished non-member who is widely viewed as being ‘above’ party politics.” His idea of such a figure was Sandra Day O’Connor. And just last week, two separate conservative journalists, Jonah Goldberg and Peter Roff, advocated the nomination of Newt Gingrich, who retired as a Georgia Representative and the Speaker of the House in 1999.

But perhaps the most surprising suggestion came from freshman Senator Ben Sasse (R-NE), who unleashed what the Washington Post aptly called a “tweetstorm” on Sunday evening. Senator Sasse decried the conventional wisdom about the race for Speaker as “reductionistic” and argued that Americans want a storyteller, someone with a vision for the country’s future. And whom did he have in mind? Arthur Brooks, the non-member of Congress who heads a think tank in Washington, the American Enterprise Institute.

So what’s the case against choosing a non-member like Brooks to be Speaker? Responding to Goldberg’s suggestion for a once-and-future Speaker Gingrich, Matthew Franck offered the constitutional case for why the next Speaker should not and, indeed, cannot be someone who isn’t a sitting member of the House. Franck’s argument runs like this: If Gingrich, a private person and not a member of Congress, can be Speaker then any non-member can be speaker, and “that goes for public officials, too.” And if a public official—say, the Secretary of the Treasury or even the President—can be Speaker of the House, then “one of the principal bulwarks of the separation of powers” would be undermined. From this argument Franck draws the conclusion that the relevant constitutional provisions’ clear purpose is to ensure that “cabinet officers stay rooted in the executive branch, while speakers rise up from their native soil of the House.”

This is an odd way to argue against the selection of a private person for Speaker of the House. The focus of Franck’s argument is preserving the separation of powers by preventing public officials in the executive or judicial branches from serving in the legislature, which says nothing about private persons. Indeed, for Franck, the Progressive horrible—the specter of command-and-control governance through unified branches of government—is the true target of his constitutional argument.

But the appointment of a cabinet member or President is clearly prohibited by the Incompatibility Clause. Franck acknowledges this clause, and even cites it in support of his separation-of-powers argument. But he reads it as operating in only one direction, that is, only prohibiting members of Congress from serving in the executive or judicial branches. On this basis, he argues that the Constitution does not bar a cabinet official from appointment to Speaker “because that officer of the executive branch would not become a member of the House by virtue of his appointment.”

If the Incompatibility Clause, and the Constitution of which it is a part, embodies separation-of-powers principles, then there’s little reason for such a crabbed reading. If the underlying purpose is to preserve the autonomy of governmental branches, then the appropriate principle is the non-simultaneity of service. And if that’s the case, then the clause operates in both directions: members of Congress cannot simultaneously serve in the other two branches even as executive and judicial officials cannot simultaneously serve in Congress. Such an interpretation of the Incompatibility Clause finds support in Federalist 76, where Hamilton argues that this clause is one of the “important guards against the danger of executive influence upon the legislative body.”

We’ve thus avoided Franck’s Progressive horrible while leaving intact the notion that, under the Constitution, a private citizen could serve as Speaker of the House. More importantly, we’ve seen that there are strong constitutional grounds for this position. But none of this makes it any more likely that we’ll see a non-representative Speaker anytime soon. What’s more likely is the continuation of what we’ve seen for the last two centuries—speakers drawn from the pool of sitting representatives.

Franck is right to say that “traditional practice should probably count for something.” But it shouldn’t count for everything. This legislative tradition is likely to continue for the same reason it began in the first place: it’s in the interest of House members to limit eligibility to their own. And all the better for them if their interests have a veneer of constitutionality.

Reader Discussion

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on October 08, 2015 at 17:34:17 pm

If you haven’t heard, there’s a job opening on Capitol Hill. It pays well but, as the outgoing incumbent might tell you, the management duties are pretty stiff....

If you haven't heard, there continues to be a job opening on Capital Hill. House Majority Leader Kevin McCarthy has withdrawn his head from the noose.

If, one by one, each member of the house declines to serve, I guess we'll have to go hunting for leadership outside the chamber. Right now it's doubtful that any sitting member could secure sufficient votes to win -- and almost certainly couldn't without Democratic support.

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nobody.really
on October 08, 2015 at 19:16:53 pm

Put your name in the hat as it appears that nobody really wants the job!!!

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gabe
on October 08, 2015 at 20:45:36 pm
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nobody.really
on October 09, 2015 at 10:51:09 am

Hey, I would have voted for you - but as Prof. Schaub explains above you can't run and I can't vote!!!!

seeya

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gabe
on October 13, 2015 at 14:01:05 pm

[…] Disgusted by the dysfunction in Congress, some are suggesting this is constitutionally possible. Connor Ewing, in this space yesterday, asserted the only thing standing in the way is “over two centuries of […]

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Image of Dysfunction Is No Excuse for Misreading the Constitution
Dysfunction Is No Excuse for Misreading the Constitution
on October 14, 2015 at 11:46:10 am

[…] Disgusted by the dysfunction in Congress, some are suggesting this is constitutionally possible. Connor Ewing has asserted the only thing standing in the way is “over two centuries of legislative practice […]

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Image of Why Only a House Member Could Be Elected House Speaker | All Things Political Today
Why Only a House Member Could Be Elected House Speaker | All Things Political Today
on October 23, 2015 at 10:15:38 am

I agree with you analysis and wrote something similar about a week earlier: http://specieaeternitatis.blogspot.com/2015/10/the-once-and-future-speaker-gingrich.html

But I think you are missing an uncomfortable point in our position (as I did initially too). The problem with the incompatibility clause is not that it might not be bidirectional (how could it not be?), but that it only applies to *members* of Congress, not its officers, like the Speaker.

If--as we argue--it would be Constitutional to appoint a non-member as Speaker and this non-member did not somehow become a supernumerary member of the House as a consequence, then the incompatibility clause would not bar the House from appointing a current cabinet secretary (or even the President?) as Speaker of the House.

That certainly seems weird. The only consolation is that the House would actually have to do something so patently stupid and we can hope that not even it would sink that low.

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Sub Specie Æternitatis

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.