A Non-member Speaker, the Debate, and its Lessons
Seth Barrett Tillman
Congressional officers and publications have consistently maintained that the House of Representatives is free to pick a non-member Speaker. See, e.g., 18 Deschler-Brown-Johnson-Sullivan Precedents of the United States House of Representatives, 94 Cong., 2d Sess., H. Doc. No. 94–661, at Appendix 481, 486 (2013) (House Parliamentarian Charles W. Johnson, III: “Votes for candidates [for Speaker of the House] other than those nominated by the two-party caucuses were cast on several occasions, including votes for non-Members, since the Speaker need not be a Member of the House . . . .” (emphasis added)); Valerie Heitshusen, Cong. Research Serv., Order Code 97–780, The Speaker of the House: House Officer, Party Leader, and Representative CRS-2 (2011) (“Although the major parties nominate candidates for the position of Speaker, there is no limitation on for whom Members may vote. In fact, there is no requirement that the Speaker be a Member of the House. None of the other [traditional] officers of the House [e.g., clerk, sergeant at arms, door keeper] is a Member.” (emphasis added) (footnote omitted)); Speaker of the House, History, Art & Archives: US House of Representatives, (“[T]he Speaker—who has always been (but is not required to be) a House Member . . . .” (emphasis added)).
It might very well be true that the Framers, Ratifiers, and the American public at the time of the framing expected the Speaker of the House to be a member (or, more properly, they expected the Speaker to be a member-elect, as members are seated only after the selection of Speaker). But such an expectation or background assumption—even if very widely shared—does not automatically crystallize into constitutional obligation or law. Something more—indeed, much more—is required. See, e.g., Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601, 611 (2003) (“[T]hough the text of the Constitution does not expressly state that the two offices—President and Vice President—are incompatible, it is clear that the unstated premise of the Constitution is that the two offices are held by different persons in order that the Vice-President can succeed the President in the event of the latter’s removal from office, death, resignation, or disability.” (footnote omitted)).
I seem to remember, years and years ago, Dean Gerhard Casper giving a Harper Lecture at the University of Chicago in which he hinted that he would make a fine choice for the Supreme Court of the United States! Professor Kurland, obm, responded along the lines: “Don’t you think you should be a United States citizen first?” The audience (myself included) had a good laugh. But think about it for a moment. Generally, Article III justices and judges, and also Article I judges, are nominated by the President subject to Senate advice and consent. Although I have not researched the precise question, I believe every Chief Justice of the United States and every Associate Justice has been a United States citizen. I am reasonably confident that the same could be said for each and every Article III judge since 1789. And if I had to guess, and admittedly it would be just a guess, I expect the same is true for all Article I judges, including every United States magistrate judge and every United States bankruptcy judge.
So let us assume, for the purposes of our discussion, that we have an unbroken tradition of Article III judges being United States citizens when appointed. Let us also assume that the Framers, Ratifiers, and wider American public at the time of the framing expected Presidents would appoint only United States citizens to such posts. Query: Does a widely shared expectation from the framing era in conjunction with an unbroken post-framing tradition crystallize into constitutional law? Are modern Presidents in making appointments to Article III judicial positions limited to choosing only United States citizens? The appointment by a President of a non-citizen to an Article III judicial position might be imprudent, bad policy, and/or bad politics, but would such an appointment be illegal, void, or unconstitutional? If the President, using his recess appointment power, appointed a non-citizen to an Article III judicial position, would impeaching the President be an appropriate remedy? I suppose some might answer these questions with a “yes.” But plain folk, and other “parlor-trick textual[ists],” might read the Appointments Clause as setting the sum total of what is required in the appointments context, even for key positions in the federal judiciary. But cf. Matthew J. Franck, Speaker Gingrich? Not Really Constitutional, National Review Bench Memos (“The point is that parlor-trick textualism is not the most sensible way to interpret the Constitution.”). Such textualists hold fast to their position not because they are simple-minded, but because they understand that the counter-position, as it is untethered from actual constitutional text, is the interpretive gateway to unlimited government, and also because they are loathe to invent constitutional obligations and wrongs absent reasonably clear textual proscriptions. In a simpler, better, and less sophisticated time, such parlour-trick textualism used to be called “the rule of law.”
As I said, I have yet to meet a person or to read a commentator who was willing to suggest that Article III judicial positions are constitutionally limited to United States citizens because of framing-era expectations, or because of our rich unbroken tradition of Presidents’ limiting their judicial appointments to citizens, or for any other reason. Now why is that? Is it because I do not get out enough? Or is it because under the regnant intellectual constitutional zeitgeist, presidential powers are always interpreted maximally (despite concerns relating to framing-era expectations and long-standing traditional practice), but by contrast, congressional powers are always minimized based on expectations, practice, or anything else on hand if not invented out of whole cloth. See, e.g.,Diana Schaub, Dysfunction Is No Excuse for Misreading the Constitution, Library of Law & Liberty (“A non-member Speaker would be the only office-holder in our system not bound by [the Article VI] oath.” (emphasis added)). But see, e.g., Steven G. Calabresi, Response, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 162 (1995) (“No constitutional oath is required of [non-member subordinate] legislative officers, like the Clerk of the House or the Secretary of the Senate . . . .”); Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107, 139 n.79 (2009) (“[T]he Vice President [is] a sui generis figure, one to whom the Article VI oath does not clearly apply, nor does any other separate constitutional oath (as with the President). It was perhaps in recognition of this difficulty that the First Congress imposed a statutory oath on the Vice President in his or her role as President of the Senate, not as Vice President of the United States.”). Is this inconsistency in approach to presidential and congressional powers deeply rooted in our legal culture? The answer is painfully obvious to all not already wholly committed to his or her preferred results or policy outcomes.