Is It Really True That Anyone Can Be Elected Speaker of the House?

Answers to your questions about the news.
Jan. 4 2013 4:26 PM

Can Colin Powell Really Be Speaker of the House?

Plus, why John Boehner might not be in line for the presidency.

Speaker of the House John Boehner
Speaker of the House John Boehner kept his hold on the gavel, despite unwitting challenges from Colin Powell and Allen West.

Photo by Mark Wilson/Getty Images.

John Boehner was narrowly re-elected as speaker of the House of Representatives on Thursday. Dissident Republicans cast votes for former Secretary of State Colin Powell and Tea Party favorite Allen West, who was voted out of Congress in November. Do you have to be a member of Congress to be Speaker?

Probably. The Constitution states only that “The House of Representatives shall chuse their Speaker and other Officers.” Many journalists, as well as the clerk of the House of Representatives, take this to mean that an outsider can be elected speaker. Even the Explainer once repeated this popular bit of constitutional mythology. Unfortunately, it probably isn’t true. The drafters of the Constitution likely took for granted that the speaker had to be a member of Congress. In his 1801 Manual of Parliamentary Practice, Thomas Jefferson likened the election of the leader of the Senate—and, by implication, the speaker of the House—to the British Parliament’s tradition of physically dragging the elected speaker of the House of Commons to the chair. That comparison is revealing, because the speaker of the House of Commons is elected from its membership. In addition, state legislatures always drew speakers from their own memberships, even though the state constitutions in place at the time the federal Constitution was drafted did not explicitly require it. Perhaps the clearest indication of the Framers’ intent comes from longstanding practice: Every speaker of the House has been a member of Congress. To the Explainer’s knowledge, no one from the founding generation ever cast a vote for a non-member. (The modern habit of voting for non-members is merely an act of protest, in any event.)

The Constitution lists explicit requirements for other offices. The president, for example, must be a natural born citizen, 35 or older, and a U.S. resident for at least 14 years. To serve in the House, you have to be at least 25 years old, a citizen for at least seven years, and live in the state you represent. The lack of explicit requirements for speaker implies to some interpreters that the framers deliberately opened the speaker’s post to anyone—an infant, a foreigner, or even a jar of jelly beans can hold the office. The other indications of the Framers’ intent, however, likely outweigh the Constitution’s vagueness on this point. Unfortunately, since the courts can’t decide the issue unless the House elects a non-member, this constitutional myth persists.

Although he has beaten Colin Powell’s unwitting challenge, John Boenher shouldn’t revel in his place in the line of succession. According to some legal scholars, he can’t ascend to the presidency. If the president and vice president are both incapacitated, the Constitution requires Congress to declare “what Officer shall then act as President.” The current federal succession statute, which provides that the speaker assumes the presidency under those circumstances, is arguably unconstitutional. In some contexts, “officer” refers to any government official, but the Constitution sometimes refers only to members of the executive branch as “officers.” There are some persuasive reasons to think the Framers would have considered the speaker ineligible for the presidency. For one thing, the speaker plays a role in impeachment proceedings, creating a conflict of interest. In addition, it’s impermissible to serve simultaneously in the legislative and executive branches. If the speaker had to temporarily assume the presidency—for example, if the president and vice president were simultaneously injured or missing—he or she would have to resign the legislative post. Once the president’s incapacity passed, the speaker would be out of a job.

Got a question about today’s news? Ask the Explainer.

Explainer thanks Vikram David Amar of the University of California-Davis; Michael Gerhardt of the University of North Carolina; Daniel Hulsebosch of New York University; Jeffrey A. Jenkins of the University of Virginia; and Ronald M. Peters, Jr. of the University of Oklahoma.

Brian Palmer is Slate's chief explainer. He also writes How and Why and Ecologic for the Washington Post. Email him at Follow him on Twitter.


Sports Nut

Grandmaster Clash

One of the most amazing feats in chess history just happened, and no one noticed.

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

Do the Celebrities Whose Nude Photos Were Stolen Have a Case Against Apple?

The NFL Explains How It Sees “the Role of the Female”

Future Tense

Amazon Is Now a Gadget Company


How to Order Chinese Food

First, stop thinking of it as “Chinese food.”

Scotland Is Inspiring Secessionists Across America

The Country Where Women Aren’t Allowed to Work Once They’re 36 Weeks’ Pregnant

The XX Factor
Sept. 18 2014 11:40 AM The Country Where Women Aren’t Allowed to Work Once They’re 36 Weeks’ Pregnant
Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
Sept. 18 2014 3:19 PM In Defense of Congress Leaving Town Without a New War Vote
Business Insider
Sept. 18 2014 3:31 PM What Europe Would Look Like If All the Separatist Movements Got Their Way
Sept. 18 2014 4:15 PM Reactions to a Sketch of Chelsea Manning Reveal Transmisogyny
  Double X
The XX Factor
Sept. 18 2014 3:30 PM How Crisis Pregnancy Centers Trick Women
  Slate Plus
Behind the Scenes
Sept. 18 2014 1:23 PM “It’s Not Every Day That You Can Beat the World Champion” An exclusive interview with chess grandmaster Fabiano Caruana.
Sept. 18 2014 4:00 PM When The Cosby Show Got “Very Special” Why were The Cosby Show’s Very Special Episodes so much better than every other ’80s sitcom’s?
Future Tense
Sept. 18 2014 2:39 PM Here's How to Keep Apple From Sharing Your iPhone Data With the Police
  Health & Science
Sept. 18 2014 3:35 PM Do People Still Die of Rabies? And how do you know if an animal is rabid?
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.