Bench Memos

How to Rip a Clause from Its Context

In bygone years, I used to teach a course in which we prepared students for a state-required test on the U.S. and Illinois constitutions.  Back then, and in more recent years teaching constitutional law, I would encounter students who fell into simple misunderstandings of the Constitution’s text because they focused on a single clause and missed its context.  One humdinger was reading the recess appointments clause (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session”) in a vacuum, as though it referred to a power of appointing temporary senators.  Easy mistake, easily corrected by noting the context in Article II.

In yesterday’s Washington Post, Norman Ornstein committed nearly as bad a whopper, excused only by the fact that many people have made the same mistake (though most have been too-clever-by-half college students).  Proposing that the House Republicans elect Jon Huntsman to be Speaker of the House, he observes that Article I, Section 2 of the Constitution “does not say that the speaker of the House has to be a member of the House.”  True, it does not say that.  And Article III does not say that a justice of the Supreme Court has to be an American citizen, resident, or adult; it could be a twelve-year-old girl living in Shanghai.

Let’s think more clearly.  The language of Article I, Section 2 is that “The House of Representatives shall chuse their Speaker and other Officers . . .”  The “other Officers” pose an interesting question we can come back to, regarding whether they must be members.  But observe first that the House has always chosen one of its own for Speaker.  The Senate, being given a presiding officer from outside its membership (the Vice President), likewise always turns to one of its own to be its president pro tempore in his absence, though nothing in Article I, Section 3 says it must.  Why do both houses consistently choose their own members for these offices?

One clue is in the clause of Article I, Section 3 saying that the Vice President, though presiding over the Senate, “shall have no vote, unless they [the senators] be equally divided.”  Nothing similar is said of the president pro tem, and yet it will naturally occur at times that he too might be in a position to break a tie.  In order to do so, he would need to have the right to vote in the Senate, and since (unlike the Vice President) he is not explicitly granted this right, he must possess it by virtue of his membership as a senator.

Now turn to the Speaker of the House.  Occasions will arise when the members (not counting the Speaker) will deadlock in a tie.  Should the Speaker be enabled to cast a deciding vote?  If it is natural to answer in the affirmative, then he will have to be an elected member of the House like all the rest of those voting, for the Constitution supplies him no explicit right to vote at all, unlike the provision made for the Vice President.

The House’s rules reflect the historic presumption that the Speaker be a member, giving Article I a congressional construction that is the best reading of the text and context.  House Rule I.7 says the Speaker “is not required to vote in ordinary legislative proceedings,” indicating that of course he may, and this he could not do if he were not a member.  It adds “except when such vote would be decisive or when the House is engaged in voting by ballot,” again indicating a presumption of ordinary membership on the Speaker’s part, since the rules could not give him a voting right that the Constitution fails to provide (if parity with the Senate’s presiding officer governs our interpretation).

The House rules also identify “other officers” in Rule II: the clerk, the sergeant-at-arms, the chief administrative officer, and the chaplain, all elected by the House at the beginning of each Congress.  The first three officers are removable by the Speaker, and all four are required by the rules to take an oath of office, which indicates that they are not members of the House, who take their own constitutionally required oath.  The rules say nothing about the Speaker taking an oath–because it is assumed that as a member he has already done so.  If the House were to break with precedent (as well as the most natural reading of the Constitution) and elect a non-member as Speaker, what oath would he take?  The Constitution would provide none, and the House rules would provide none.

As I say, context and the most natural reading of constitutional and institutional norms compel the conclusion that the Speaker must be a member.  The House has always thought so, and would never adopt Ornstein’s cockeyed idea.


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