The House Speaker Election: Unnecessary Collateral Delay?Bryan Wildenthal

[Ed.: For this guest post we welcome Bryan H. Wildenthal, Professor Emeritus, Thomas Jefferson School of Law, and Visiting Professor at University of San Diego School of Law, most recently in Spring 2021.]

(Note to colleagues: I originally drafted these thoughts in an email to mostly non-lawyer friends and family while the deadlock was on-going, so please forgive some rehashing of familiar hornbook points of law. I have a done a bit of additional research for this blog posting but want to generally preserve the original style.)

One of the most puzzling aspects, for me, of the four-day deadlock over electing Kevin McCarthy as the new Speaker of the U.S. House of Representatives, has been the oft-repeated claim that reelected and newly elected members of the House could not even be sworn in as such until a Speaker was first elected by the members-elect (with the newly elected Speaker then swearing in all the other members).

This procedure, right off the bat, was and remains one of obviously dubious constitutionality. It seems to put things exactly backward.

Article I of the Constitution clearly states (Section 2, Clause 5) that “[t]he House of Representatives shall choose their Speaker and other Officers ....” Members-elect are not empowered to act as members of the House until they are sworn in, so how can they exercise the constitutionally specified power to elect the Speaker? The constitutionally proper order of procedure would be for all members-elect to first be sworn in as members and only then elect the Speaker.

The “terms” of all members-elect of the current House (and newly elected Senators) automatically began at noon on Tuesday, January 3, pursuant to Section 1 of the 20th Amendment (ratified in 1933; before that the date had long been set by statute as March 4 but was not specified by the Constitution). But of course, even with their terms having begun, House members-elect could not actually exercise any of the powers of members before taking the legally required oath of office.

Actually, it’s a bit more complicated than that. The Constitution explicitly requires, in Article II, Section 1, Clause 8, only that the President of the United States take the oath “before ... enter[ing] on the Execution of [the] Office.” Article VI, Clause 3, applying to all members of Congress (House or Senate) and all other federal officers, merely states that they “shall be bound by Oath or Affirmation, to support this Constitution ....”

However, I think most would agree it’s a necessary implication of Article VI that members of Congress (and the president and all other federal officers) must take the oath (or make the “affirmation”) before exercising any of their powers. Otherwise, how would they “be bound by” it? It would be deeply troubling, to say the least, to imagine members-elect voting on matters before Congress, going to classified hearings, and so forth, without yet having formally committed themselves to support and uphold the very Constitution creating and governing their offices and powers!

Yet, ironically, that is exactly the bizarre proposition suggested by the current topsy-turvy procedure of having members-elect (not yet sworn to uphold the Constitution) voting on who will become the new Speaker of the House!

The Speaker is one of the most important officers of the United States. For one thing, she or he is designated by statute as second in line to the presidency, following only the Vice President! It is utterly bizarre to think that persons not yet bound to uphold the Constitution could vote to elect such an important officer!

By the way, some legal scholars, including Professors Akhil and Vikram Amar in a 1995 Stanford Law Review article, have argued that the Speaker is not, in fact, an “officer” eligible for the presidential succession. But that is plainly erroneous, as I have shown in a conclusive 2020 rebuttal to the Amar argument (see https://ssrn.com/abstract=3714362).

Whether Democrats like it or not, Kevin McCarthy is now two heartbeats from the presidency, just as Nancy Pelosi was under Republican Presidents G.W. Bush and Trump. The concern that Newt Gingrich was only two heartbeats from the presidency during the Clinton-Gore administration appears to have been at least part of the motivation for the Amars to publish their article. I agree with the Amars that it’s deeply unwise, as a policy matter, for the presidential succession law to allow a potentially abrupt midterm change of political party control of the White House, but that has nothing to do with the issue of constitutionality.

I was educated by the excellent coverage of the recent Speaker deadlock by the New York Times that a federal statute currently on the books, 2 U.S.C. § 25, provides by law for the dubious procedure that electing a Speaker must be the first order of business of each newly elected House, even before members-elect are sworn in.

But this statute is almost certainly unconstitutional. Even aside from the objections noted above, Congress has no power to enact statutes governing the internal rules and operations of each House of Congress. Under our constitutional system, Congress is a body of only delegated powers. Nothing in the powers delegated to Congress by Article I (or elsewhere in the Constitution) suggests that Congress itself, as a bicameral body, has any authority over internal House (or Senate) proceedings, or the proper order of business with regard to electing a House Speaker or swearing in members.

This is not a debatable or ambiguous point. The Constitution is explicit and crystal-clear (Article I, Section 5, Clause 2) that the House and the Senate each, individually, have the power to “determine the Rules” of each body’s “Proceedings.” Such rules need not be enacted into federal law to have full force and effect. Indeed, any federal law purporting to enact, override, or modify such rules would be patently unconstitutional for the reasons noted.

I am far from expert on the rules of either House of Congress, a highly arcane and detailed subject falling outside constitutional law or my other specialties as a law professor. But a quick check of the rules of the House available online does not appear to reveal any rule addressing the order of business set forth by the federal statute cited above. If any such rule exists, it would be subject to the same constitutional challenge as the statute. Members-elect could not, of course, change such a rule until and unless they themselves were sworn in as members. But if such a rule were unconstitutional, they could properly disregard it.

It is unclear to me that anything in the House rules, or statutes such as that cited above, could legally prevent any member-elect from being sworn in, or simply “affirming” the requirements of Article VI, at any time. So why did any members-elect feel the need to sit around waiting for the disputed election of the Speaker to be resolved?

Nothing in the Constitution requires that the specified oath be administered by the Speaker of the House, or any other member of the House, just as the law nowhere specifies who may swear in the President. Generally speaking, almost any public officer, even a lowly notary public, may properly administer an oath. Members-elect could have gone to their local Mailboxes Etcetera to find one!

Furthermore, the constitutionally authorized alternative of “affirmation” is often forgotten or left unstated, but it underscores the points I’m making. To merely “affirm” the obligations set forth in Article VI would not seem to require anyone in particular to “administer” such an “affirmation,” as long as it is affirmed in a solemn manner for the public record.

It is merely a custom that the President is sworn in by the Chief Justice of the United States. When President John F. Kennedy was assassinated in Dallas in 1963, Vice President Lyndon B. Johnson was sworn in onboard Air Force One (on the tarmac at Love Field) by a local federal district judge, Sarah Hughes. Given Cold War tensions, it was thought to be urgent not to wait one minute more than necessary for him to be fully empowered to exercise all presidential powers, including as commander-in-chief of the armed forces.

Vice President Calvin Coolidge, upon learning of the death of President Warren Harding, was in fact sworn in by his own father, a local justice of the peace and notary public, by the light of a kerosene lamp at 2:47 am on August 3, 1923, in the family's rural Vermont home, which lacked either electricity or telephone.

Thus, I would suggest that any or all members-elect of the House could have been sworn in at any time during the farcical protracted deadlock the nation has just witnessed, by any available authorized officer, and could even have taken the individual initiative to swear the oath or make the affirmation.

They would then have been actually empowered by the Constitution to elect the Speaker, and at any rate could also have exercised, without any delay, all the other important powers of members of Congress, even if the issue of the Speaker’s election had remained deadlocked for some continuing period of time.

A final thought: Does the failure of the House to follow the proper constitutional procedure cast doubt on McCarthy’s status as Speaker? I think not, since the House’s subsequent actions (with all members sworn in) would appear to ratify the election by the members-elect. But it’s another troubling constitutional question. The House rules, and relevant statutes, should be promptly revised to conform to the Constitution (and common sense).