Adam Reed Moore (BYU Law School), Kade Allred (BYU Law School), & Tanner Wadsworth (Columbia University, Law School; Columbia Journal of Transnational Law) have posted The Constitutional Case Against Non-Member Speakers of the House on SSRN. Here is the abstract:
The text, history, and tradition of the Constitution all dictate that the Speaker of the House be a serving member of Congress. Yet legislators continue to nominate non-members for the speakership. This Article closely analyzes the text of the Speaker Clause and leverages 700 years of history and tradition to make the case against non-member speakers of the House.
This Article also discusses whether the issue of non-member speakers could make its way through the courts, analyzing who might have standing to sue and whether the suit would present a political question.
This Article’s conclusion is significant. It sheds light on the procedure and rationale involved in choosing a Speaker of the House. It forecloses an increasingly common argument among sitting House members. And by excluding non-members as candidates for the speakership, this Article’s conclusion promises to make future speakership negotiations and votes more smooth, eliminating one potential avenue for meaningless protest votes.
