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10/15/2015

George W. Bush and Bill Clinton are Both Ineligible for Speaker of the House, and for President, and for Vice-President
Andrew Hyman

This month, the eligibility of a non-member to be Speaker of the House has been widely discussed at this blog (see here, here, here and here).  Here are my thoughts:

A good starting point for this analysis is the text of the Constitution: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States...."  Must the Speaker of the House be a "member"?  If so, it seems pretty clear that he must be chosen every second year by voters in his state.

According to one law dictionary published in 1708, we have the following definition (italics added):

Speaker of the Parliament, is an officer in that High Court, who is, as it were, the common mouth of the rest: and as that honorable assembly consists of two houses, so there are two speakers, the one termed the Lord Speaker of the House of Peers, and is most commonly the Lord Chancellor, or Lord Keeper of the Great Seal of England.  The other (being a member of the House of Commons), is called the Speaker of the House of Commons; both whose duties you have particularly described in a book entitled, The Order and Usage of Keeping the Parliament.

This is evidence that the Speaker of the House of Commons was by definition a "member" of the House, at least upon attaining that office.  This understanding of speaker of the house was prevalent at the founding of our federal constitution.  For example, in September of 1787, Tench Coxe wrote in a Philadelphia newspaper that the proposed House of Representatives is "to elect their speaker from their own number" (Coxe later served as a delegate to the Continental Congress). It is true that the Constitution says the "president of the Senate" is not a member of the Senate, but there is no corresponding language allowing such a thing in the House.  On the contrary, the Constitution strongly implies that the Speaker of the House must be a member: "The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution...."

On a related subject, Mike Ramsey discussed earlier this year whether a two-term president can later become vice-president and then succeed to the presidency, despite the 22nd Amendment.  Very clearly not, I say.  According to that amendment, a person who succeeds to the presidency (instead of being elected), and who thus serves for more than two years as President, may not "be elected to the office of the President more than once" (emphasis added).  The central question here is whether that's a lifetime limit, or instead is prospective only.  If it's a lifetime limit of one election to the presidency, then that would rule out people like George W. Bush and Bill Clinton.  

To determine whether those words (“more than once”) refer to a lifetime limit or merely a prospective limit, one must consider the context.  The 22nd Amendment says: "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once."  The phrase "more than twice" very clearly refers to a lifetime limit, and so the later phrase "more than once" was apparently understood as a lifetime limit too, in contrast to the earlier phrase "more than twice."  The whole structure of the amendment is obviously to set a lifetime ceiling on the number of times a person can be elected to the presidency, and to lower that ceiling for people who manage to become President via a non-elective route.

If Bill Clinton or George W. Bush somehow managed to get back in control of the White House (i.e. without running for president again), they'd have to resign within "two years" per the 22d Amendment.  As Professor Dan Coenan says, “this interpretation could compel a successor President to step down in the middle of a four-year term…”  But Coenan is mistaken when he says that this prospect "does not rise to the level of an interpretive deal-breaker.”  Of course it certainly is an interpretive deal-breaker.  After all, it would contradict the constitutional provision that "he shall hold his office during the Term of four years" (a  constitutional provision which Coenan omits to mention).

Bottom line: only a constitutional amendment could make Bill Clinton or George W. Bush eligible to be Speaker of the House without first running for Congress.  Nor are they eligible for the presidency.  Nor are they eligible for the vice-presidency (per the 12th Amendment).