Volokh conspiracy lawyer scrgruppen
There is a fascinating and detailed debate about whether former President Donald Trump is ineligible to serve as president again under Section 3 of the Fourteenth Amendment. After House Speaker Kevin McCarty was ousted, some suggested Trump could be Speaker of the House, and some reports suggested the former president was open to it. (He may have liked the idea of immunity for speech and debate as a shield against judicial gag orders.) But will Trump be qualified to be Speaker of the House?
Aside from Section 3 issues (such as whether Trump’s conduct disqualifies him and whether the office of the presidency is the type of office covered by the amendment), there is a dispute over whether someone who is not an elected member of the House of Representatives may serve as Speaker of the House.
like Lewis Jacobson summed it up for Politifact, Many experts believe that there is no constitutional requirement to choose the Speaker of the House of Representatives from among the members of the Council, although this has not happened before. Back in 2015, Pete Williams reported for NBC Both the writer of the house and the historian of the house agreed with this opinion.
Not everyone shares this opinion. Per day Wall Street Journal, Michael Ellis and Greg Dubinsky argue Against the idea that any non-member of the House of Representatives can hold the position of Speaker of the House of Representatives. They believe it is an “urban myth” that the Speaker of the House does not have to be an elected representative. they write:
The theory that anyone can be elected Speaker of the House is based on an obvious omission in the Constitution. Article 1 states that the House of Representatives “shall choose its President and other officials.” Because the clause does not explicitly state that a speaker must be a member, proponents conclude that anyone can be a speaker.
But textual silence in one sentence is weak evidence. Established practice, history, and constitutional structure cut the other way. As a long-standing practice, every speaker was a member, a tradition dating back to the First Congress (1789-1791). As the Congressional Research Service notes, the first recorded nonmember votes for Speaker were cast in 1997, and since then no nonmember has received more than a handful of votes in an election for Speaker. . . .
The constitutional structure also indicates that the Speaker of the House of Representatives must be a member of the House of Representatives. Article VI requires only senators, representatives, state legislators, and all federal and state executive and judicial officers to be sworn in. It does not make sense to ask these officials to take the oath while exempting the non-member speaker. Furthermore, Article I vests all “legislative powers” in the Senate and House of Representatives, and the House of Representatives consists of members elected every two years. Unlike other “officers” elected by the council, such as the clerk and censor, the president of the council participates in legislative functions. By law, the Speaker of Parliament must sign registered bills before submitting them to the President and administer the oath of office to other members. A registered bill signed by a non-legislator may be subject to legal challenge.
Other legal problems may arise if the speaker is not a member. What if the council decides to elect a member from another branch? This would seem to violate the spirit of Article I, Section 6, which prohibits any person “holding any office under the United States”—that is, certain executive or judicial officers—from being “a member of either House while he continues in office.” It would be strange to bar a Supreme Court justice from Congress, but then allow him to serve as a much more powerful president.
Fortunately, it doesn’t look like we’ll have to resolve this issue anytime soon. There are at least two House Republicans vying for the position, and one of them (or one of their colleagues) will likely be the next Speaker of the House.
