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

===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>