More on the Speaker: The House Rules Require the Speaker to Be a Member and the Absence of Judicial Review

In my prior post, I argued that it is not clear that the Constitution requires the Speaker to be a Member of the House of Representatives. Here, I thought I would mention two related issues.

First, while the Constitution does not require that the Speaker be a member of the House, there is a strong argument that the House Rules do require it. The Rules of the House, adopted in January of 2015 for the two year period, provide

  1. The Speaker is not required to vote in ordinary legislative proceedings, except when such vote would be decisive or when the House is engaged in voting by ballot.

Thus, the House Rules require the Speaker to vote under certain circumstances. This strongly suggests that the Speaker must be a member, because it would be unconstitutional for a nonmember to have a vote. See here. A nonmember could not fulfill the duties of the Speaker.

Of course, the House could amend these rules if it wanted to elect a new Speaker. The House Rules are enacted at the beginning of the new Congress.  But there is no prohibition on their being amended—in fact, I have argued with John McGinnis that it is a constitutional requirement that they be subject to amendment by a majority of the House.

Second, my argument that the Speaker may not need to be a member of the House led some of the commentators to discuss the judicial role in this matter. It seems very likely that the courts would not hear a case challenging the appointment of a Speaker who was not a member. But does that mean that the Constitution does not limit the House’s decision, because the courts will not review it? Absolutely not. A claim about whether the Constitution requires the Speaker to be a Member is based on the Constitution itself and its application to the House. It is not based on whether the courts will enforce it. Nor is it based on a prediction that the House will enforce that claim. The courts can misconstrue or ignore the Constitution; similarly, the House can misconstrue or ignore the Constitution. None of that changes what the Constitution means.