The Framework for an Unelected Speaker

Introduction

On October 3, 2023, the United States House of Representatives made history. For the first time in 234 years, a speaker of the House was ousted. This was only the second time in history that a speaker had faced a vote to oust them, the first being an unsuccessful attempt in 1910 by Republicans against then speaker Joe Cannon. This new situation placed House Republicans in uncharted territory: finding a new speaker of the House in the middle of a session of Congress. This may end up being a particularly difficult task because, as of October 9th, no candidate has enough backing to secure the position. “To add to the turmoil, Hamas, a U.S. designated terrorist organization, launched a massive attack on Israel on October 7th: a marked escalation of the Israel-Palestine conflict.” The United States is one of Israel’s largest financial and military supporters, providing billions of dollars every year to support the nation’s security. As of October 9th, the attack in Israel has killed at least 1,500 people, including 11 Americans. 

This unexpected escalation of the conflict has increased lawmakers’ concerns surrounding the speakership, as further tensions could delay vital aid to Israel. This leaves House Republicans scrambling to find a candidate that can secure the roughly 217 votes needed from the 221 Republican members. Due to the far-right leaning of the dissenters who orchestrated the McCarthy ousting, it is likely that only a candidate closer to the right flank of the GOP will be able to meet this threshold. One such candidate whose name has been thrown into the mix is none other than former President Donald J. Trump. This may seem impossible, since, in the 234 years of the House of Representatives, none of the 55 speakers have been non-members. However, multiple Republican representatives have floated former President Trump’s name as a possibility, including far-right Representative Marjorie Taylor Greene., The former president has also toyed with the prospect of being nominated for the position. This led many to wonder if Donald Trump could constitutionally become the speaker of the House, second in line of succession for the , without having been elected to the body by the American people. 

The Legal Debate

 The idea of a non-House member becoming speaker has long been mentioned but never seriously approached. The speakership is actually the only House officer that traditionally has been chosen from the sitting membership of the House. That said, there have been instances where people who were not members of the House of Representatives have received votes for the speakership. Most recently, in the long battle that led to McCarthy becoming speaker, Donald Trump got one vote in three different rounds of voting. The clerk of the House and the House historian agree that the speaker could be a non-member, saying that the individual granted the title “has always been (but is not required to be) a House Member.” This is derived from the vagueness of the Constitution on the election of the speaker of the House. The Constitution says that “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.” Since the Constitution does not explicitly require that the speaker of the House be a member, and all the other officers of the House are non-members, there is significant Constitutional support for the potential election of a non-member speaker. However, there are still many challenges that could arise if the House GOP made a serious effort to elect Trump to the speakership.

The strongest Constitutional counterargument to a non-member speakership comes from what is known as an “original meaning” interpretation of the Constitution. According to the Constitution Center, “Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed”. For this case, the “from other legal documents from which the text might be borrowed” portion of originalism forms the basis for the significant argument that an originalist would make. This is because of the precursor to the United States Constitution, the 1781 Articles of Confederation, which called on Congress “to appoint one of their number to preside” over the body. Originalists use this excerpt to make the argument that the speaker was always intended to be a member of the House and that this phrasing was simply lost when the Framers wrote the present Constitution more concisely than the Articles of Confederation. However, there exists one major issue with this originalist explanation that may weaken its fundamental assumption: the Articles of Confederation never specifically refer to the leader of Congress as the “speaker.” The person chosen to preside over the House, according to this document, is called the “president” and given a term limit of one year. This significantly decreases the potential validity that a court may give to a claim relying on an originalist interpretation to prevent a non-member speaker of the House. The “president” position to which the Articles of Confederation refer, therefore, may be different from the speaker of the House. As such, the meaning of the Articles would have no influence on the meaning of the current U.S. Constitution. 

A weaker but very frequently used argument is that the precedent of never having had a non-member speaker is enough to prove that there cannot be a non-member speaker. This argument posits that the precedent that the House of Representatives set by never having had a non-member speaker is enough to make it unconstitutional for a non-member to take the role. The Supreme Court has supported such logic in other matters: “The longstanding ‘practice of the government’ . . . can inform [the] determination of what the law is.”, The issue with using this as a basis for this argument, however, is that it fails to address the fact that this precedent of allowing a non-member speaker may already exist. Even though there has never been a non-member speaker, multiple non-members have received votes that were counted as valid votes since 1997. The acceptance of these votes for non-members by the House of Representatives indicates that the House recognizes the eligibility of people who are not members of the House to be voted for the speakership. The winners of elections do not set the precedent for who is allowed to win––being eligible to receive votes (and, therefore, win) does. Donald Trump has already received a vote for the speakership, and regardless of what the intention behind the vote was, it was recorded as a valid vote.

The Intraparty Issue

With the points on both sides of this debate established, it is important to question the true probability of a Trump nomination. The continuing escalation of the war in Israel continues to put heavy pressure on the Republican-led House of Representatives to pick a new speaker urgently. Representative Kat Cammack (R-FL) stated, on October 10th that she did not “know if by the end of tomorrow we will have a speaker. I don’t know if by the end of this week we will have a speaker…If you were to ask me a couple of days ago, pre-Israel being horrifically attacked by Hamas, I would have told you that it would have been a month before we had a speaker.” Representative Cammack’s concerns over the difficult position that House Republicans are in, combined with the additional tensions stemming from the war in Israel, shows why the few far-right House members that ousted McCarty have a particularly high influence on the speakership race. The House GOP is scrambling to find a new leader, all while it is being reported that “Republicans are increasingly open in referring to Trump as the party’s leader”. 

 The far-right House Freedom Caucus, which was vital in getting Kevin McCarthy booted from the speakership, is well-known for its endless support for the former president. Members of the Caucus have publicly suggested the former president should run for the speakership. Trump responded to the support for him by saying that “A lot of people have been calling me about speaker. All I can say is we’ll do whatever’s best for the country and for the Republican Party.” Trump also told Fox News Digital that he would consider taking the speakership as a temporary 30-90 day role. According to recent polling, Trump is still multiple times more popular for the presidency than any other Republican candidate. This could translate over to the speakership race as well since House Republicans may want to support the person who is viewed as the de facto leader of the party. If Donald Trump were to make a serious bid for the speakership, House Republicans may hesitate to vote against him at risk of political repercussions. Politically, the cards are in the hands of the Trump-supporting House members, which could set him up for a run for the speaker of the House.

A Trump campaign for speaker may also gain ground thanks to Trump’s stance on the conflict in Israel. During his presidency, Trump was a massive supporter of Israel and even said of himself that “the Jewish state has never had a better friend in the White House than your president, Donald J Trump.” Since the end of his presidency, Trump has painted himself as the remedy to a weak Democratic presidency which allowed for Israel to be attacked. Although his actual handling of Israel is subject to debate, the momentum he may gain via these claims might prove to be substantial. The conflict in Israel has given Trump’s House allies additional power, which makes him being elected for the speakership a distinct possibility.

Where the Constitution and the political climate both fail to rule Donald Trump out of the race for speaker of the House, however, the House Republican Conference’s own rules very well may. Rule 26 states, “A member of the Republican Leadership shall step aside if indicted on a charge of a felony for which a sentence of two or more years imprisonment may be imposed.” This is an obvious hindrance to any chance Donald Trump could have to get nominated for the House speakership, as he currently faces 91 felony charges, the worst of which is punishable by up to 20 years in prison. This means that the largest hurdle, which most seriously hindered any real momentum that a Trump for speaker campaign could have gotten, are rules within the GOP’s own House caucus. 

Conclusion

 The speaker of the House is undoubtedly one of the most influential and significant positions in the United States government. The speaker of the House not only has immense power over the House of Representatives but is also second in the line of succession for the presidency. The House of Representatives is known as the “People’s House,” and it is somewhat frightening that the most powerful officer in said People’s House could be someone not elected by the American people. The originalist argument regarding the Constitution’s true intention with the speakership may not be strong enough to entice the originalism-friendly Supreme Court to interfere, and historical precedent favors allowing a non-House member to run for speaker. Because of this, constitutionally, former President Donald Trump is free to bid for the office without needing the American people’s approval. However, where the Constitution proves insufficient, the House Republican Conference’s rules succeed in disqualifying Donald Trump. In future, the United States should not solely rely on the House Republican Conference to protect it against an unelected speaker of the House––constitutional change is needed. Since a Constitutional Convention has never been called and Republicans currently control 29 of the state legislatures, the most likely method for amending the Constitution to only allow for a member of the House to be speaker would be by two-thirds approval of the Congress., Because Republicans in all scenarios are unlikely to take steps that would purposefully oppose the most influential Republican, it is more likely than not that there will be no change in the foreseeable future. 

____________

1 Al Jazeera, “What military aid the US is sending to Israel after Hamas attack?” Al Jazeera (October 2023). https://www.aljazeera.com/news/2023/10/9/what-military-aid-the-us-is-sending-to-israel-after-hamas-attack. 

2 Al Jazeera. “Trump tells Jewish-Americans he is Israel’s best friend.” Al Jazeera (December 2019). https://www.aljazeera.com/news/2019/12/8/trump-tells-jewish-americans-he-is-israels-best-friend. 

3 Amiri, Farnoush; Mascaro, Lisa. “Speaker McCarthy ousted in historic House vote, as scramble begins for a Republican leader.” AP News (October 2023). https://apnews.com/article/mccarthy-gaetz-speaker-motion-to-vacate-congress-327e294a39f8de079ef5e4abfb1fa555#:~:text=WASHINGTON%20(AP)%20—%20Speaker%20Kevin,its%20Republican%20leadership%20into%20chaos. 

4 Calabresi, Steven G. “On Originalism in Constitutional Interpretation.” National Constitution Center (last visited October 2023). https:// constitutioncenter.org/the-constitution/white-papers/on-originalism-in-constitutional-interpretation#:~:text=Originalists%20believe%20that%20the%20constitutional,the%20text%20might%20be%20borrowed. 

5 Colvin, Jill; Groves, Stephen. “Trump is inserting himself into the messy race to become the next House speaker. Will it matter?” AP News (October 2023). https://apnews.com/article/trump-jordan-republicans -speaker-influence-77b4f760ff5653344b982fbabeac6ec7.

6 Congressional Research Service. “Speaker of the House: Elections, 1913-2023.” Congressional Research Service (September 2023). https://sgp.fas.org/crs/misc/RL30857.pdf.

7 Director of National Intelligence. “Foreign Terrorist Organizations: Hamas.” Counter Terrorism Guide (September 2022). https://www.dni.gov/nctc/ftos/hamas_fto.html#:~:text=The%20group%20also% 20uses%20cyber%20espionage%20and%20computer%20network%20exploitation%20operations.&text=The%20US%20State%20Department%20designated,terrorist%20organization%20in%20October%201997. 

8 Ellis, Michael; Dubinsky, Greg. “If Trump Wants to Be Speaker, He’ll Need a House Seat.” Wall Street Journal: Opinion (October 2023). https://www.wsj.com/articles/if-trump-cant-be-speaker-you-need-a -house-seat-mccarthy-gaetz-marjorie-taylor-green-ad74fcf9. 

9 Hawkins, Derek; Mourtoupalas, Nick. “Breaking down the 91 charges Trump faces in his four indictments.” The Washington Post (August 2023). https://www.washingtonpost.com/politics/2023/trump-charges-jan-6-classified-documents/.

10 Hill, Meredith L; Tully-McManus, Katherine. “Centrist GOP effort to reinstate McCarthy picks up steam after Israel attacks.” Politico: Congress (October 2023). https://www.politico.com/news/2023/10/07/some-republicans-making-bid-to-bring-back-mccarthy-to-move-on-aid-to-israel-00120501?link_id=8&can_id=9cf99c7de98c34cdc8ea7fb05371e5dc&source=email-judge-smacks-down-trumps-last-minute-escape-gambit-5&email_referrer=email_2072005&email_subject=pence-blames-trump-for-war-in-israel.

11 Lati, Marisa. “How GOP rules could keep Trump from being House speaker.” The Washington Post (October 2023). https://www.washingtonpost.com/politics/2023/10/06/trump-house-speaker/.

12 Miller, Aaron D. “Trump Was Far From the Most Pro-Israel U.S. President Ever.” Foreign Policy (October 2022).  https://foreignpolicy.com/2022/10/19/trump-pro-israel-truth-social-netanyahu-abraham-accords/.

13 National Archives. “Articles of Confederation (1777).” National Archives (last visited October 2023). https://www.archives.gov/milestone-documents/articles-of-confederation#:~:text=The%20Articles%20of%20Confederation%20were,day%20Constitution%20went%20into%20effect. 

14 Oyez. “National Labor Relations Board v. Noel Canning.” Oyez: Justia Supreme Court Center (last visited October 2023). https://www.oyez.org/cases/2013/12-1281. 

15 Raju, Manu; Zanona, Melanie; Talbot, Haley. “GOP braces for messy fight over speakership as McCarthy doesn’t rule out a return to power.” CNN Politics (October 2023). https://www.cnn.com/2023/10/09/politics/house-speaker-race-jordan-scalise/index.html#:~:text=The%20deep%20uncertainty%20has%20heightened,most%20powerful%20position%20in%20Congress. 

16 Schapitl, Lexie. “Consensus remains elusive as Republicans try to elect a House Speaker.” NPR Politics (October 2023). https://www.npr.org/2023/10/11/1205025738/house-speaker-race-republicans.

17 Schnell, Mychael; Weaver Al. “Speaker race has no clear favorite as GOP tensions rise.” The Hill (October 2023). https://thehill.com/homenews/house/4246854-speaker-race-gop-tensions-rise/.

18 Stateside. “2023 Legislative Partisan Splits.” (last visited October 2023).  https://www.stateside.com/state-resource/legislative-partisan-splits.

19 Suter, Tara. “Trump: Israel attack results of U.S. being seen as ‘weak and ineffective’.” The Hill (October 2023). .https://thehill.com/homenews/campaign/4243734-trump-israel-attack-results-of-us-being-weak-ineffective/.

20 U.S. Government Publishing Office. “House Practice: A Guide to the Rules, Precedents and Procedures of the House: Chapter 34. Office of the Speaker.” U.S. House of Representatives. Page 637 (last visited October 2023). https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/html/GPO-HPRACTICE-108-35.htm#:~:text=Election%20Speaker%20Chosen%20from%20Members,sitting%20membership%20of%20the%20House.

21 U.S. House of Representatives. “History of the House.” House.gov (last visited October 2023). https://www.house.gov/the-house-explained/history-of-the-house#:~:text=The%20House%20is%20the%20only,is%20not%20a%20continuing%20body. 

22 U.S. House of Representatives. “History of the House:Speakers of the House (1789 to present).” House.gov (last visited October 2023). https://history.house.gov/People/Office/Speakers-Intro/.

23 U.S. House of Representatives. “The People’s House: A Guide to Its History, Spaces, and Traditions.” House.gov (last visited October 2023). https://history.house.gov/peoples-house/.

24 Waxman, Olivia B. “The House Tried to Oust a Speaker Once Before McCarthy. Here’s What Happened.” Time (October 2023). https://time.com/6320471/kevin-mccarthy-speaker-ousted-history/.

25 Williams, Pete. “Can An Outsider Be Speaker of the House?” NBC News (October 2015). https://www.nbcnews.com/politics/congress/can-outsider-be-speaker-house-n441926.

26 Yokley, Eli. “Tracking the 2024 Republican Primary: Trump posts record-high primary support.” Morning Consult (October 2023). https://pro.morningconsult.com/trackers/2024-gop-primary-election-tracker.