Matt Gaetz said Trump should be the Speaker of the House. Is that possible?

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Will former President Donald Trump launch his return to politics as future speaker of the House of Representatives? Rep. Matt Gaetz, R-Fla., Is sending out fundraising appeals that will tell the recipient to imagine how it feels when we make our next House Speaker Donald J. Trump. Another part of the fundraising letter includes a big red button that says: Join me: Lets be Trump as Speaker. Ignore that Trump no longer holds an elected office, and may or may not be interested in the job. The former president fully responded to the suggestion after being told he could use the position to open an impeachment interrogation of President Joe Biden. What can be investigated in Biden is, of course, aside from the point.

Wing commentator Wayne Allyn Root urged Trump to run for a seat in the House, become Speaker of the House, and then launch criminal investigations into Biden and impeach him. Trump was intrigued: “It’s exciting.” pic.twitter.com/5ECkSABDbi

Right Wing Watch (@RightWingWatch) June 4, 2021

But Gaetzs ’fundraising efforts, using this highly unlikely scenario, made me think about the political, legal and logistical requirements for the speaker, a position with a lot of power but more likely to be topic of your average civics lesson.

To begin, do I need to be a representative speaker? Maybe not. As Pete Williams previously noted for NBC News, the Constitution is silent on this question. So the head of the House of Representatives, the third person in line of presidential order, could be that person on the street corner holding a sign about chemtrails? This is America, after all, the land of opportunity.

It is important to note that each previous speaker was an elected member of Congress. And that’s almost undoubtedly what the Founders intended. The surprising part here is that by law, such a requirement can be more customary than mandatory.

It is important to note that each previous speaker was an elected member of Congress.

The speaker plays an important role, and not just because he holds one of our two federal legislative bodies. If disaster strikes, they are third in line to become president.

The Presidential Success Act of 1947 provides that if by reason of death, resignation, removal from office, incapacity, or failure to qualify, neither a President nor a Vice President shall remove powers and duties of the office of the President, then the speaker of the House resigns his position and acts as president. So far very well, except for the small issue of the constitutionality of the 1947 law.

The Constitutional Order Clause provides that if both the president and the vice president do not remove the powers and duties of said office, Congress may nominate which Officer shall act as president until the original president or elect a new president. The legal issue is whether the speaker is considered an official.

On the one hand, there is some evidence that Clause constructors understand Officers to mean executive officers (such as members of the Cabinet) and not legislators. This would mean that Congress has no power under the Constitution to place the speaker of the House on the line of the presidential order. There are also structural reasons why a legislative leader may not be the best option to serve as acting president. For example, it may create a conflict of interest in the event of impeachment proceedings. On the other hand, there are two places in the Constitution where the term Officers is used to refer to legislative officials. And members of the Second Congress seem to believe that putting the speaker on the line of the presidential order is permissible.

In addition to potential legal landmines, there are many political questions to consider when it comes to the current line of succession. If the Electoral College elected a Republican president and vice president, there is something somewhat problematic about installing a democratic spokesperson as acting president (assuming the speaker at the time was a Democrat).

Scholar commentators (myself included) have been arguing for reform here for decades, with neither party in power.

It makes no sense to have a line of succession that could change partisan control of the presidency like this in the middle of a term.

2/5

Brian Kalt (@ProfBrianKalt) July 13, 2021

What is the solution here? Congress can always pass a new law, in accordance with the Constitution, which provides that the third in line for the presidency must be a member of the Cabinet, such as the secretary of state. (This was previously the case, from 1886 to 1947). Because when it comes to issues like who will be in charge of leadership in our country, it feels better not to wait for a catastrophe to clarify this fairly basic point.

The Trump era has brought us a lot of amazing legal hypothetical. But, if the Gaetzs fundraising somehow fuels a push for Trump to be spokesman, we may see more action along this line soon. Changing the line of the presidential order could quickly become politically impossible to charge. Imagine a world where both Biden and Vice President Kamala Harris are indisposed where Secretary of State Anthony Blinken and Speaker Donald Trump argue that they are each acting president. This is an unlikely (and dystopian) scenario but not a technically impossible one.

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