The Volokh Conspiracy
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Is Donald Trump Eligible to Be Speaker of the House?
For a brief moment, some Republicans were arguing the disgraced and indicted President should be the next Speaker of the House.
There's a fascinating and detailed debate over whether former President Donald Trump is disqualified from again serving as President under Section 3 of the 14th Amendment. After House Speaker Kevin McCartyh was ousted, some of suggested that Trump should be Speaker, and some reports suggested the former President was open to it. (Maybe he liked the idea of having Speech and Debate Clause immunity to use as a shield against judicial gag orders.) But would Trump be eligible to be Speaker?
Setting aside the Section 3 issues (such as whether Trump's conduct was disqualifying and whether the Speakership is the sort of office covered by the amendment), there is a dispute over whether an individual who is not an elected member of the House may serve as speaker.
As summarized by Louis Jacobson for Politifact, many experts believe there is no constitutional requirement that the Speaker of the House be selected from among the House's members, even though this has never happened before. Back in 2015, Pete Williams reported for NBC that both the Clerk of the House and the House historian concurred with this view.
Not everyone shares this view. In today's WSJ, Michael Ellis and Greg Dubinsky argue against the notion that a non-House member can serve as Speaker. They believe it's an "urban legend" that the Speaker need not be an elected representative. They write:
The theory that anyone can be elected speaker relies on a seeming omission in the Constitution. Article I states that the House "shall chuse their Speaker and other Officers." Because the clause doesn't expressly state that the speaker must be a member, proponents infer that anyone could be speaker.
But textual silence in one clause is weak evidence. Settled practice, history and constitutional structure cut the other way. As a matter of longstanding practice, every speaker has been a member, a tradition that dates to the First Congress (1789-91). As the Congressional Research Service notes, the first recorded votes for nonmembers to be speaker were cast in 1997, and since then no nonmember has ever received more than a handful of votes in a speaker election. . . .
Constitutional structure also indicates that the speaker must be a member of the House. Article VI requires constitutional oaths of office only from senators, representatives, state legislators and all federal and state executive and judicial officers. It would make little sense to require an oath of office from these officials while exempting a nonmember speaker. Moreover, Article I vests all "legislative Powers" in the Senate and the House, and the House is "composed of Members" elected every two years. Unlike the "other Officers" elected by the House, like the clerk and the sergeant at arms, the speaker engages in legislative functions. By statute, the speaker must sign enrolled bills before they are presented to the president and administer the oath of office to other members. An enrolled bill signed by a nonlegislator could be vulnerable to legal challenge.
Other legal problems could arise if the speaker isn't a member. What if the House decided to elect a member of another branch? That would seem to violate the spirit of Article I, Section 6, which prohibits any person "holding any Office under the United States"—meaning certain executive or judicial officers—from being "a Member of either House during his Continuance in Office." It would be strange to bar a Supreme Court justice from being a member of Congress, but then allow one to serve as the far more powerful speaker.
Fortunately, it does not appear we will have to resolve this question any time soon. There are at least two House Republicans vying for the position, and one of them (or one of their colleagues) is likely to be the next Speaker.
UPDATE: Matt Franck also made the argument against the eligibility of a non-House member back in 2015 when some folks were suggesting Newt Ginrich should return as Speaker. See his NRO Bench Memos posts here and here.
