Speaker Gingrich . . . Unconstitutional?

by Jonah Goldberg

In my latest column I float the idea of bringing in Newt Gingrich as the Steward of Gondor and by Gondor I mean the House of Representatives and by Steward I mean Speaker.  I totally get arguments about how it’s a crazy or stupid idea and I will make no effort to refute such reactions here — at least for now (I am very pressed for time). 

But my friend Matt Franck argues that such a move would be unconstitutional. Now Matt knows more about the Constitution than I do about sitting in a chair drinking scotch while watching TV, which is to say he knows a great deal about it. So I tread onto his turf advisedly and reluctantly. 

Matt says that returning Gingrich to the speaker’s chair would be unconstitutional because of the “incompatibility clause,” which he quotes in full. He then adds:

Focus on the second half of this clause, after the semicolon, sometimes called the Incompatibility Clause.  This underappreciated language has been one of the principal bulwarks of the separation of powers in our history.  Under its terms there can be no simultaneous service in both the legislative and executive branches, or in both the legislative and judicial branches.  (The consistent usage of the Constitution is to call “officer” only those who serve in the executive and judicial branches, while in Congress it is always “member.”)  Interestingly enough, simultaneous service in the executive and judicial branches is perfectly all right, and has happened in some notable cases. 

Now consider the ramifications of the “Speaker Gingrich Part Deux” scenario.  Gingrich is a private citizen.  But as I noted already, if any non-member can be speaker, that goes for public officials too.  Since the House has the power of the purse, why not make the secretary of the Treasury the speaker as well?  That would make a lot of things run more smoothly!  Such an election would not be “technically” barred by the clause quoted above from Article I, section 6, because that officer of the executive branch would not become a member of the House by virtue of his appointment as speaker.  But this would be a disastrous breach of the separation of powers, from the point of the view of the framers.  Unite this clause with the “shall chuse their Speaker” clause, and the purpose is clear.  Cabinet officers stay rooted in the executive branch, while speakers rise up from their native soil of the House.

I find most of this really unpersuasive. It’s largely an argument about hypotheticals and repercussions that don’t really touch on what I am proposing. Matt writes: “if any non-member can be speaker, that goes for public officials too.  Since the House has the power of the purse, why not make the secretary of the Treasury the speaker as well?” Well, no. It seems to me Matt is trying to cross a canyon in two jumps. Maybe I was sloppy with my language. But I don’t think that the Treasury secretary could be speaker. But just because a Treasury secretary cannot be speaker, that doesn’t mean that only members can be speakers  (though it’s worth noting that the founders did require the Vice President to be an officer of the senate without being a member of the senate, which suggests the founders may have been more open to this sort of thing than Matt implies).   

Still,  Matt is probably right that the founders envisioned the speaker emerging from the “native soil of the House.”

Well, I have three points to make about that.

  1. Maybe so, but it’s not explicitly written that way in the Constitution. 
  2. What other soil did Gingrich come from? The Judicial branch — as I understand it — often invites retired judges back to serve as emeritus judges for specific cases or purposes. Why can’t the House call back one of its own? Regardless, a speaker Gingrich 2.0 simply doesn’t raise many of the constitutional issues Matt seems worried about.
  3. The simple fact is that the House can do it if the House wants to do it because the Supreme Court would never intervene in such a case. (For the record, I normally hate this kind of argument. If Congress thinks something is unconstitutional they shouldn’t do it, rather than pass the buck to the Supreme Court. But as a matter of practical politics, I’m fairly certain that if the House went down this route, no one could stop them.). 

So if you don’t want Newt Gingrich to be speaker, that’s fine. But don’t hide behind the Constitution!

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