Salvaging the Speaker Clause: The Constitutional Case Against Nonmember Speakers of the House
Tanner Wadsworth*, Kade Allred** & Adam Moore*** | 26.4 | Citation: Tanner Wadsworth, Kade Allred & Adam Moore, Salvaging the Speaker Clause: The Constitutional Case Against Nonmember Speakers of the House, 26 U. Pa. J. Const. L. 1123 (2024).
As the Founding generation understood the word, “Speaker” meant an elected member of the House. Yet modern representatives nominate non-House-members for the speakership—and many argue the practice is constitutional. To correct this constitutional drift, this Article closely analyzes the text of the Speaker Clause, the structure of the Constitution, and 700 years of history and tradition to show that the Constitution requires the Speaker of the House to be a member of the House. It also considers the practicalities of correcting this drift. If, as this Article argues, the Constitution bars nonmembers from the speakership, who can enforce that rule, especially if Congress itself is the one violating it? Though the Speaker Clause likely is not justiciable, Congress has an independent duty—equally important to that of the judiciary—to uphold the Constitution.
This Article’s conclusion is significant. It clarifies the procedure and rationale involved in choosing a Speaker of the House. And by excluding nonmembers as candidates for the speakership, this Article’s conclusion promises to make future speakership negotiations and votes smoother, eliminating one avenue for meaningless protest votes.
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* JD, Columbia Law School; BA, Brigham Young University. He would like to thank Philip Bobbitt for introducing him to constitutional interpretation and Brooke Wadsworth for her support.
** Associate, Quinn Emanuel Urquhart & Sullivan, LLP. JD, BYU Law School; BA, Brigham Young University-Idaho. Thanks to my learned friends for joining me in this endeavor and to my wife, ShaeLynn, and my two sons.
*** Term Clerk, United States Court of Appeals for the Sixth Circuit; JD, 2023, BYU Law School; BA, 2019, Brigham Young University. Many thanks to Aspen Moore for her support.