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.

Advertisement

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 writes about science, medicine, and the environment for Slate and the Natural Resources Defense Council. Email him at explainerbrian@gmail.com. Follow him on Twitter.

TODAY IN SLATE

Justice Ginsburg’s Crucial Dissent in the Texas Voter ID Case

The Jarring Experience of Watching White Americans Speak Frankly About Race

Here’s Just How Far a Southern Woman May Have to Drive to Get an Abortion

The Most Ingenious Teaching Device Ever Invented

Marvel’s Civil War Is a Far-Right Paranoid Fantasy

It’s also a mess. Can the movies do better?

Behold

Sprawl, Decadence, and Environmental Ruin in Nevada

Space: The Next Generation

An All-Female Mission to Mars

As a NASA guinea pig, I verified that women would be cheaper to launch than men.

Watching Netflix in Bed. Hanging Bananas. Is There Anything These Hooks Can’t Solve?

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

  News & Politics
The World
Oct. 20 2014 1:13 PM Obama’s Post-Congressional Foreign Policy
  Business
Moneybox
Oct. 20 2014 12:37 PM The Fed Will Probably Stop Injecting Huge Sums of Money Into the Economy This Month
  Life
Atlas Obscura
Oct. 20 2014 1:43 PM Chouara: A Striking 11th-Century Tannery in Morocco
  Double X
The XX Factor
Oct. 20 2014 1:10 PM Women Are Still Losing Jobs for Getting Pregnant
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
  Arts
Brow Beat
Oct. 20 2014 1:26 PM This $248 Denim Jumpsuit Is the Latest Example of a Horrible Fashion Tradition
  Technology
Future Tense
Oct. 20 2014 12:54 PM The Earth Just Had Its Warmest “Year” on Record
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
  Sports
Sports Nut
Oct. 20 2014 10:23 AM Where I Was Wrong About the Royals I underestimated the value of building a team that’s just barely better than mediocre.