Editing Speaker of the United States House of Representatives (section)

== Selection ==
The House elects its speaker at the beginning of a new Congress, {{Linktext|biennially}}, after [[Elections in the United States|a general election]], or when a speaker dies, resigns, or is removed from the position during a congressional term. At the start of a new Congress, those voting to elect the speaker are representatives-elect, as a speaker must be selected before members are sworn in to office; the House of Representatives cannot organize or take other legislative actions until a speaker is elected.<ref>{{Cite news |last=Broadwater |first=Luke |date=January 5, 2023 |title=Lacking a Speaker, One Part of Government Ceases to Function |language=en-US |pages=A1 |work=The New York Times |url=https://www.nytimes.com/2023/01/04/us/politics/house-speaker-representatives.html |access-date=January 6, 2023 |issn=0362-4331}}</ref>

Since 1839, the House has elected speakers by [[roll call vote]].<ref name=HG125>{{cite web| last=Forte| first=David F.| title=Essays on Article I: Speaker of the House| url=https://www.heritage.org/constitution/#!/articles/1/essays/10/speaker-of-the-house| work=Heritage Guide to The Constitution| publisher=Heritage Foundation| access-date=January 11, 2019| archive-date=August 22, 2020| archive-url=https://archive.today/20200822232208/https://www.heritage.org/constitution/%23!/amendments/8/essays/161/cruel-and-unusual-punishment#!/articles/1/essays/10/speaker-of-the-house| url-status=live}}</ref> In practice, each [[Party caucuses and conferences in the United States Congress|party's caucus or conference]] selects a candidate for the speakership from among its senior leaders prior to the roll call. To be elected speaker, a candidate must receive a majority of votes from the members present and voting. If no candidate wins a majority, the roll call is repeated until a speaker is elected.<ref name=CRS-RL30857/> Representatives are free to vote for someone other than the candidate nominated by their party but generally do not, as the outcome of the election effectively demonstrates which party has the [[Majority party|majority]] and consequently will organize the House.<ref name=CRS-RL30857>{{cite web| last1=Heitshusen| first1=Valerie| last2=Beth| first2=Richard S.| title=Speakers of the House: Elections, 1913–2019| date=January 4, 2019| work=CRS Report for Congress| url=https://fas.org/sgp/crs/misc/RL30857.pdf| publisher=[[Congressional Research Service]], the [[Library of Congress]]| location=Washington, D.C.| access-date=January 11, 2019| archive-date=January 14, 2021| archive-url=https://web.archive.org/web/20210114194614/https://fas.org/sgp/crs/misc/RL30857.pdf| url-status=live}}</ref>

Representatives who choose to vote for someone other than their party's nominee usually vote for someone else in their party or vote "[[Abstention|present]]", in which case their vote does not count in tallying the vote positively or negatively. Anyone who votes for the other party's candidate could face serious consequences, as was the case when [[Democratic Party (United States)|Democrat]] [[James Traficant]] voted for [[Republican Party (United States)|Republican]] [[Dennis Hastert]] in 2001 ([[107th Congress]]). In response, the Democrats stripped him of his seniority, and he lost all of his [[United States congressional committee|committee]] posts.<ref>{{cite news|url=https://www.washingtonpost.com/politics/james-a-traficant-jr-colorful-ohio-congressman-expelled-by-house-dies-at-73/2014/09/27/fa98868a-4431-11e4-9a15-137aa0153527_story.html|title=James A. Traficant Jr., colorful Ohio congressman expelled by House, dies at 73|last=Schudel|first=Matt|date=September 27, 2014|newspaper=[[The Washington Post]]|access-date=January 11, 2019|url-status=live|archive-url=https://web.archive.org/web/20150812054204/https://www.washingtonpost.com/politics/james-a-traficant-jr-colorful-ohio-congressman-expelled-by-house-dies-at-73/2014/09/27/fa98868a-4431-11e4-9a15-137aa0153527_story.html|archive-date=August 12, 2015|url-access=limited}}</ref>

Upon election, the new speaker is sworn in by the [[dean of the United States House of Representatives]], the chamber's longest-serving member. Additionally, it is customary for the outgoing speaker, or the minority leader, to hand the speaker's [[gavel]] to the new speaker, as a mark of the [[peaceful transition of power]].<ref>{{cite web|title=Fathers/Deans of the House|url=https://history.house.gov/Institution/Seniority/Deans-of-the-House/|website=history.house.gov|publisher=United States House of Representatives|access-date=January 11, 2019|archive-date=January 12, 2019|archive-url=https://web.archive.org/web/20190112044354/https://history.house.gov/Institution/Seniority/Deans-of-the-House/|url-status=live}}</ref><ref>{{cite web| url=https://constitution.laws.com/house-of-representatives/election-of-the-speaker| title=Election of the Speaker Overview| website=constitution.laws.com| access-date=January 11, 2019| archive-date=August 27, 2019| archive-url=https://web.archive.org/web/20190827095618/https://constitution.laws.com/house-of-representatives/election-of-the-speaker| url-status=live}}</ref><ref>{{cite web |url= https://www.voanews.com/a/explainer-how-the-house-of-representatives-elects-a-speaker/6907009.html |title= Explainer: How the House of Representatives Elects a Speaker |author=<!--Not stated--> |date=January 6, 2023|website=voanews.com|publisher= Voice of America |access-date=January 9, 2023 }}</ref>

===Eligibility of non-members===
While every speaker of the House has been a sitting House member, [[Article One of the United States Constitution#Clause 5: Speaker and other officers; Impeachment|Article I, Section II, Clause 5, of the U.S. Constitution]], concerning the choosing of a speaker, does not explicitly state House membership as a requirement.{{sfn|Rossiter|2003|p=543}} As noted by the [[Congressional Research Service]], non-members have, on multiple occasions since 1997, received votes in [[List of Speaker of the United States House of Representatives elections|speaker elections]].<ref name=Valerie /><ref>{{cite report|last=Heitshusen|first=Valerie|date=May 31, 2023|title=Electing the Speaker of the House of Representatives: Frequently Asked Questions|publisher=Congressional Research Service|page=2|url=https://crsreports.congress.gov/product/pdf/R/R44243|access-date=October 5, 2023}}</ref> In 1787, while the proposed Constitution was being considered, Pennsylvania [[Congress of the Confederation]] delegate [[Tench Coxe]] publicly wrote the following:

<blockquote>The house of representatives is not, as the Senate, to have a president chosen for them from without their body, but are to elect their speaker from their own number . . . .<ref>''[https://books.google.com/books?id=y8eFAAAAMAAJ&pg=PA144 Pamphlets on the Constitution of the United States: Published During Its Discussion by the People 1787–1788]'', p. 144 ([[Paul Leicester Ford]] ed., 1888).</ref></blockquote>

Noting that the [[Vesting Clause]] of [[Article One of the United States Constitution#Section 1: Legislative power vested in Congress|Article I, Section I]] states that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives",{{sfn|Rossiter|2003|p=542}} political scientist [[Diana Schaub]] has argued, "Legislative powers cannot be lodged in the hands of a non-legislative person. To do so would violate the fundamental purpose of Article [I] of the Constitution."<ref name="Schaub">{{cite web|last=Schaub|first=Diana|date=October 9, 2015|title=Dysfunction Is No Excuse for Misreading the Constitution|website=Law & Liberty|publisher=Liberty Fund|url=https://lawliberty.org/dysfunction-is-no-excuse-for-misreading-the-constitution/|access-date=October 8, 2023}}</ref> Both Schaub and the CRS note that the [[Procedures of the United States House of Representatives|Standing Rules and Orders of the House]] created by the [[1st United States Congress]] provided that the Speaker would vote "In all cases of ballot by the [H]ouse",<ref name="Schaub" /><ref>{{cite report|last=Heitshusen|first=Valerie|date=May 16, 2017|title=The Speaker of the House: House Officer, Party Leader, and Representative|publisher=[[Congressional Research Service]]|page=8|url=https://crsreports.congress.gov/product/pdf/RL/97-780|access-date=October 5, 2023}}</ref> while former [[House Intelligence Committee]] general counsel [[Michael Ellis (attorney)|Michael Ellis]] and attorney Greg Dubinsky have argued that the speaker must be a House member because the Speaker performs various legislative functions that other House officers (such as the [[Sergeant at Arms of the United States House of Representatives|Sergeant at Arms]] and the [[Clerk of the United States House of Representatives|Clerk]]) do not perform.<ref name="Ellis & Dubinsky">{{cite news|last1=Ellis|first1=Michael|last2=Dubinsky|first2=Greg|date=October 5, 2023|title=If Trump Wants to Be Speaker, He'll Need a House Seat|work=The Wall Street Journal|publisher=News Corp|url=https://www.wsj.com/articles/if-trump-cant-be-speaker-you-need-a-house-seat-mccarthy-gaetz-marjorie-taylor-green-ad74fcf9|access-date=October 5, 2023}}</ref><ref>{{cite report|last=Heitshusen|first=Valerie|date=May 16, 2017|title=The Speaker of the House: House Officer, Party Leader, and Representative|publisher=[[Congressional Research Service]]|pages=3–4; 7–8|url=https://crsreports.congress.gov/product/pdf/RL/97-780|access-date=October 5, 2023}}</ref> 

Schaub and the CRS also note that the text of the [[Presidential Succession Act of 1947]] assumes that the speaker is a House member in requiring the speaker's resignation upon [[United States presidential line of succession|succession to the presidency]] due to the [[Ineligibility Clause]] of [[Article One of the United States Constitution#Section 6: Compensation, privileges, and restrictions on holding civil office|Article I, Section VI]].<ref name="Schaub" /><ref>{{cite report|last=Neale|first=Thomas H.|date=July 14, 2020|title=Presidential Succession: Perspectives and Contemporary Issues for Congress|publisher=Congressional Research Service|page=5|url=https://crsreports.congress.gov/product/pdf/R/R46450|access-date=July 19, 2023}}</ref> The Ineligibility Clause provides that "No ... Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States... and no Person holding any Office under the United States, shall be a Member of [the] House during his Continuance in Office."{{sfn|Rossiter|2003|p=545}} Along with political scientist Matthew J. Franck,<ref>{{cite magazine|last=Franck|first=Matthew J.|date=September 30, 2015|title=Speaker Gingrich? Not Really Constitutional|magazine=National Review|url=https://www.nationalreview.com/bench-memos/speaker-gingrich-not-really-constitutional-matthew-j-franck/|access-date=October 10, 2023}}</ref> Schaub, Ellis, and Dubinsky argue that permitting a Senator or an executive or judicial officer of the federal government to serve as a non-member Speaker would cause a significant breach of the [[Separation of powers under the United States Constitution|constitutional separation of powers]].<ref name="Schaub" /><ref name="Ellis & Dubinsky" />

Schaub, Ellis, and Dubinsky also argue that permitting a non-member to serve as Speaker would effectively exempt Speakers from the eligibility requirements of the [[Article One of the United States Constitution#Clause 2: Qualifications of Members|House Qualifications Clause of Article I, Section II]] and from being bound by an [[oath of office]] under the [[Article Six of the United States Constitution#Oaths|Oath or Affirmation Clause of Article VI]] as opposed to House members.<ref name="Schaub" /><ref name="Ellis & Dubinsky" /> The House Qualifications Clause requires that "No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a [[Citizen of the United States]]".{{sfn|Rossiter|2003|p=543}} The Oath or Affirmation Clause provides that "The ... Representatives before mentioned... and all executive and judicial [[Officer of the United States|Officers ... of the United States]]... shall be bound by Oath or Affirmation, to support this Constitution".{{sfn|Rossiter|2003|pp=555–556}} Pursuant to Article VI, the 1st United States Congress passed the [[An act to regulate the time and manner of administering certain oaths|Oath Administration Act]] (that remains in effect) which provides that "...the oath or affirmation [required by the sixth article of the Constitution of the United States]… shall be administered ... to the Speaker".<ref>{{USStat|1|23}}, {{USPL|1|1}}, {{USC|2|25}}</ref>

Like the [[U.S. Supreme Court]]'s ruling in ''[[NLRB v. Noel Canning]]'' (2014), Ellis and Dubinsky cite an 1819 letter written by [[James Madison]] to [[List of justices of the Supreme Court of Virginia|Virginia Supreme Court of Appeals]] Judge [[Spencer Roane]] where Madison stated that "difficulties and differences of opinion [arising] in expounding terms [and] phrases ... used [in the Constitution]... might require a regular course of practice to liquidate [and] settle the meaning of some of them."<ref name="Ellis & Dubinsky" /><ref>{{ussc|name=NLRB v. Noel Canning|volume=573|page=513|docket=12-1281|slip=8|year=2014}}</ref> In holding in ''NLRB v. Noel Canning'' that the [[Recess appointment|Recess Appointments Clause of Article II, Section II]] does not authorize the President to make appointments while the Senate is in ''[[pro forma]]'' [[Legislative session|sessions]],{{sfn|Rossiter|2003|p=552}} the Supreme Court cited ''[[Marbury v. Madison]]'' (1803) and ''[[McCulloch v. Maryland]]'' (1819) in concluding that "The longstanding 'practice of the government' ... can inform [the] determination of 'what the law is{{' "}}.<ref name="Ellis & Dubinsky" /><ref>{{ussc|name=NLRB v. Noel Canning|volume=573|page=513|docket=12-1281|slip=7|year=2014}}</ref><ref>{{ussc|name=Marbury v. Madison|volume=5|page=137|pin=177|year=1803}}</ref><ref>{{ussc|name=McCulloch v. Maryland|volume=17|page=316|pin=401|year=1819}}</ref>

===Speaker ''pro tempore''===
Under the Rules of the House, the speaker may designate a member to serve as speaker ''pro tempore'', acting as the body's presiding officer in the speaker's absence. In most instances, the speaker ''pro tempore'' designation lasts for no more than three legislative days, although in the case of illness of the speaker, the speaker ''pro tempore'' may serve for ten legislative days if the appointment is approved by the House.<ref name=118thCongHouseRules>[https://rules.house.gov/sites/republicans.rules118.house.gov/files/documents/Rules%20and%20Resources/118-House-Rules-Clerk.pdf ''Rules of the House of Representatives'' 118th Congress], Rule I, Section 8.</ref>

[[File:Patrick McHenry, official portrait, 116th Congress (long cropped).jpg|thumb|left|upright=.80|[[Patrick McHenry]] acted as speaker ''pro tempore'' in October 2023, following the [[Removal of Kevin McCarthy as Speaker of the House|removal of Kevin McCarthy.]]]]
Separately, a speaker ''pro tempore'' is designated in the event the office of the speaker is declared vacant. Under the current Rules of the House, at the start of their term, the speaker is required to create a secret ordered list of members to temporarily serve as speaker of the House if the speakership became vacant<ref name=Griffiths>Brent D. Griffiths, [https://www.businessinsider.com/who-leads-the-house-mccarthy-ousted-speaker-pro-tempore-2023-10 Once a secret, the temporary House speaker is Rep. Patrick McHenry], ''Insider'' (October 3, 2023).</ref> and to provide the [[clerk of the United States House of Representatives]] this list "as soon as practicable after" the election "and whenever appropriate thereafter."<ref name=118thCongHouseRules/><ref name="HousePracticeChap34">''[https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/pdf/GPO-HPRACTICE-108-35.pdf House Practice]'', chap. 34 (Office of the Speaker): "Under rule I clause 8(b)(3), adopted in the [[108th Congress]], the Speaker is required to deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore in the case of a vacancy in the Office of Speaker."</ref> The names are only revealed in the event of a vacancy (e.g., by the speaker's death, resignation, incapacitation, or removal from office).<ref name=Griffiths/><Ref name=Tully-McManus>Katherine Tully-McManus, [https://www.politico.com/live-updates/2023/10/03/congress/new-temporary-speaker-mchenry-00119758 McHenry named as acting speaker], ''Politico'' (October 3, 2023).</ref> This "succession list" procedure was created in 2003,<Ref name=Stewart>Kyle Stewart, [https://www.nbcnews.com/politics/congress/kevin-mccarthy-ousted-speaker-house-next-steps-rcna118561 What happens next after Kevin McCarthy ousted as speaker of the House], NBC News (October 3, 2023).</ref> following the [[September 11 attacks]], to promote [[continuity of government]].<Ref name=Tully-McManus/> Rule&nbsp;I, clause&nbsp;8, of the House Rules states the member whose name appears first on the list "shall act as Speaker ''pro tempore'' until the election of a Speaker or a Speaker ''pro tempore''."<Ref name=Stewart/> The speaker ''pro tempore'' is not in the [[United States presidential line of succession|line of succession for the presidency]].<Ref name=Tully-McManus/>

Following the [[removal of Kevin McCarthy]] as speaker in October 2023 on a [[Motion to vacate the chair|motion to vacate]] (the first time in history that a speaker of the U.S. House of Representatives was successfully removed by the House), [[Patrick McHenry]] was revealed to be the first name on McCarthy's list and became acting speaker.<Ref name=Stewart/><Ref name=Tully-McManus/> The intent of the rule was for the speaker ''pro tempore'' to serve for a short period, until the House elected a new speaker, but the House rules set no specific limit on the length of time that a member may be speaker ''pro tempore''.<Ref name=Stewart/>

The designation of a speaker ''pro tempore'' for purposes of succession, and for purposes of serving as the body's presiding officer in the speaker's absence, is separate from the speaker's designation of multiple members as speakers ''pro tempore'' for the purpose of allowing them to sign [[enrolled bill]]s and [[joint resolution]]s.<Ref name=Tully-McManus/><ref name=Chap34EnrolledBills>''[https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-108/pdf/GPO-HPRACTICE-108-35.pdf House Practice]'', chap. 34 (Office of the Speaker): "If the Speaker appoints a Speaker pro tempore only for purposes of signing enrolled bills and joint resolutions, such an appointment may extend for a 'specified period of time' with the approval of the House. Rule I clause 8. The Speaker may appoint two alternate Members to sign enrolled bills. Manual Sec. 634."</ref> The House Rules state: "With the approval of the House, the Speaker may appoint a Member to act as Speaker ''pro tempore'' only to sign enrolled bills and [[joint resolution]]s for a specified period of time."<ref name=118thCongHouseRules/> The list of the members with this duty (usually political allies of the speaker, or members from districts close to Washington and thus better able to hold ''[[pro forma]]'' sessions) is made public.<Ref name=Tully-McManus/>