Michael Ellis and Greg Dubinsky, in their Thursday Wall Street Journal op-ed, think the Constitution bars anyone not already a member of the House of Representatives from being Speaker of the House. For all that the two are noted lawyers, I still disagree. I have a couple of thoughts of my own on their contentions.
As a matter of longstanding practice, every speaker has been a member, a tradition that dates to the First Congress (1789-91).
Tradition certainly should be taken seriously, but it isn’t law, and so it cannot block any nontraditional action.
His interpretation of his cite from NLRB v Noel Canning also distorts the matter: “The longstanding ‘practice of the government’…can inform [the] determination of what the law is.”
The two indicate that that also bars a non-House member from being Speaker. Longstanding practice—which is nothing more than tradition—can, indeed, inform the determination of what the law is, but it cannot itself determine what the law is. And the law that bars a non-member from being Speaker does not exist.
Article VI requires constitutional oaths of office only from senators, representatives, state legislators, and all federal and state executive and judicial officers. It would make little sense to require an oath of office from these officials while exempting a nonmember speaker. …the speaker engages in legislative functions.
This is illogical on its face. A Speaker, of any provenance, engages in legislative functions, the two lawyers plainly acknowledge. That just as plainly places a Speaker of any provenance within the scope of Art VI’s requirement; he would be required to take the constitutional oath.
What if the House decided to elect a member of another branch?
Ellis’ and Dubinsky’s Constitutional argument against this is valid: such a one could not serve or would need to resign his existing position in order to serve. Which is likely why no one is advancing such a nomination possibility. This is nothing more than a silly strawman.