For the first time ever, the House of Representatives has ousted the Speaker of the House on a motion to vacate. When the Office of Speaker is vacated, House rule I clause 8(b)(3) requires that a Speaker pro tempore — currently, Representative Patrick McHenry — serve as the leader, at least nominally, of the House. And McHenry may well serve as Speaker pro tempore for weeks or months before a new Speaker is chosen. As of this writing, the House GOP has failed to choose a replacement for former Speaker McCarthy. The first nominee after McCarthy’s ouster, Representative Steve Scalise, withdrew shortly after being nominated. The second nominee, Representative Jim Jordan, failed to garner support sufficient to place him in the Speaker’s chair and was removed as the Republican nominee. The unprecedented nature of the situation prompts several questions. What are the powers and duties of a clause 8(b)(3) Speaker pro tempore? If a clause 8(b)(3) Speaker pro tempore impermissibly oversteps his role, who can hold him to account?
The process by which McHenry was chosen as Speaker pro tempore was — at least to me — surprising. Per rule I clause 8(b)(3) of the Rules of the House of Representatives, the Speaker “shall deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore” in the event of a vacancy in the Speaker post. The rule inserts the hand-selected, secret choice of the outgoing Speaker as the new temporary leader of the House — a perplexing provision, at least given the specific circumstances in which McCarthy was replaced.
But the rule was not enacted to meet the specific circumstances of McCarthy’s removal — a political ouster from McCarthy’s right flank. Rather, the rule was one of several measures adopted in the wake of 9/11 to ensure the Continuity of Congress on the recommendation of the bipartisan Cox-Frost task force, which “laid the groundwork for many of the continuity issues that the House [acted] upon during the 108th Congress.” In the post-9/11 context, allowing the Speaker to designate their potential replacement is less surprising; in a true emergency situation, preserving the continuity of government necessitates swift action.
One might assume, given the context in which clause 8(b)(3) was enacted, that the designated Speaker pro tempore is armed with a bevy of powers to deal with urgent situations. Not so. The text of the rule is frustratingly unclear: “In the case of a vacancy in the Office of Speaker, the [outgoing Speaker’s first designee] shall act as Speaker pro tempore until the election of a Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.” (The House can also elect a Speaker pro tempore — effectively empowering a Member to act with the powers of the Speaker temporarily — with powers that likely differ from those of a Speaker pro tempore who comes to power in the event of a vacancy under clause 8(b)(3).) If you’re unsure what “as may be necessary and appropriate to that end” means, you’re not alone. As Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown, helpfully discusses here, drastically different readings of the rule have been offered in the days following McCarthy’s ouster. The broadest reading would allow a clause 8(b)(3) Speaker pro tempore to operate with the full power of the Speaker. This reading might be the most intuitive in light of the context in which the rule was enacted. Nonetheless, a far narrower view appears to be more faithful both to the rule’s text and to the 108th Congress’s intent.
This narrower view holds that a clause 8(b)(3) Speaker pro tempore only has such authority necessary and appropriate to the end of electing a new Speaker. This narrower authority, despite not intuitively fitting the provision’s purpose to ensure the continuity of government, has strong support. First, and most persuasively, the Rules Committee of the 108th Congress clearly stated the powers of the clause 8(b)(3) Speaker pro tempore in a hearing regarding the Continuity of Congress: clause 8(b)(3) of rule I “requir[es] the Speaker to submit a list of designees to serve as Speaker pro tempore for the sole purpose of electing a new Speaker in the event of a vacancy in the Office of the Speaker” (emphasis added). Second, the narrower reading has better textual support. Reading the rule to mean “the Speaker pro tempore has such authorities of the Office of Speaker as may be necessary and appropriate to act as Speaker pro tempore” would be circular — the powers of the Speaker pro tempore cannot be set forth by reference to the powers necessary and appropriate to act as Speaker pro tempore. The narrower reading — “the Speaker pro tempore has such authorities of the Office of Speaker as may be necessary and appropriate to elect a Speaker or Speaker pro tempore” — avoids this circularity problem, though its narrowness is confounding in light of the rule’s purpose.
Regardless of which interpretation is strictly “correct,” the powers of a clause 8(b)(3) Speaker pro tempore will ultimately be determined by McHenry’s actions and Congress’s response. Under Article I, Section 5, Clause 2 of the Constitution (the Rules of Proceedings Clause), “[e]ach House may determine the Rules of its Proceedings.” And, fortunately for the House of Representatives, it is not bound by the intent or understanding of the rule’s writers: if the House wants to empower McHenry to act more broadly than intended under clause 8(b)(3), it can simply acquiesce to McHenry’s actions. Should a Member raise a point of order objecting to an action taken by McHenry as beyond the scope of a clause 8(b)(3) Speaker pro tempore’s power, and if the chair were to agree with that objection, a simple majority could vote to overturn the ruling of the chair and allow McHenry to act.
One may wonder what role, if any, the judiciary would play if the Speaker pro tempore went beyond their prescribed powers. And McHenry has arguably already done so by kicking Representatives Nancy Pelosi and Steny Hoyer out of their office spaces in the Capitol under the Speaker’s rule I, clause 3 power to control Capitol facilities. Unfortunately for former Speaker Pelosi and Representative Hoyer, they likely cannot seek redress in the courts. As noted above, the Rules of Proceedings Clause of the Constitution clearly empowers the House to determine its own rules.
In addition to the Rules of Proceedings clause, the Speech or Debate Clause — “[t]he Senators and Representatives shall . . . not be questioned in any other Place” for “any Speech or Debate in either House” — may prohibit courts from reviewing any actions taken by the Speaker pro tempore in the course of passing legislation. Recently, in McCarthy v. Pelosi, 5 F.4th 34 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 897 (2022), the D.C. Circuit considered a challenge to a House Resolution authorizing Members of the House to vote by proxy during the COVID-19 pandemic. The Court read the Speech or Debate Clause to bar jurisdiction over the issue. The Clause “applies not just to speech and debate in the literal sense, but to all ‘legislative acts,’” reaching “matters forming ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.’” Pelosi, 5 F.4th at 39 (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)).
Just as the Speech or Debate Clause bars jurisdiction to review the proxy vote rule, so too does it prohibit courts from entertaining suits regarding the Speaker pro tempore’s actions. The Constitution places the jurisdiction of choosing a Speaker within the House — per Article I, Section 2, “the House of Representatives shall chuse their Speaker.” Because the House has sole authority to choose its Speaker and to determine and interpret its own rules, the Speaker pro tempore’s role will ultimately be determined not by the courts, but by the precedent the House sets by contesting or acquiescing to McHenry’s actions.