Will former President Donald Trump launch his political comeback as a future speaker of the House of Representatives? Rep. Matt Gaetz, R-Fla., is sending out fundraising appeals that tell the recipient to think of “how great it will feel when… we make our next Speaker of the House Donald J. Trump.” Another portion of the fundraising letter includes a big red button that says: “Join me: Let’s get Trump as Speaker.” Never mind that Trump no longer holds elected office, and may or may not even be interested in the job. The former president did respond somewhat favorably to the suggestion after being told he could use the position to open an impeachment inquiry into President Joe Biden. What Biden might be investigated for is, of course, besides the point.
Right-wing commentator Wayne Allyn Root urged Trump to run for a House seat, become Speaker of the House, and then launch criminal investigations into Biden and impeach him. Trump was intrigued: “It’s very interesting.” pic.twitter.com/5ECkSABDbi
— Right Wing Watch (@RightWingWatch) June 4, 2021
But Gaetz’s fundraising efforts, using this extremely unlikely scenario, did get me thinking about the political, legal and logistical requirements for speaker, a position that has a lot of power but is less likely to be the topic of your average civics lesson.
To start off, does the speaker have to be an elected representative? Maybe not. As Pete Williams has noted previously for NBC News, the Constitution is silent on this question. So could the leader of the House of Representatives, the third person in the line of presidential succession, arguably be that guy on the street corner who is holding up a sign about chemtrails? This is America, after all, the land of opportunity.
It’s important to note that every previous speaker has been an elected member of Congress. And that is almost unquestionably what the Founders intended. The surprising part here is that legally, such a requirement may be more custom than mandate.
It’s important to note that every previous speaker has been an elected member of Congress.
The speaker holds an important role, and not just because he or she holds sway over one of our two federal legislative bodies. If disaster strikes, they are third in line to become president.
The Presidential Succession Act of 1947 provides that “if by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President,” then the speaker of the House resigns his or her position and acts as the president. So far so good, except for the small matter of the constitutionality of that 1947 law.
The Succession Clause in the Constitution provides that if both the president and the vice president are unable to “discharge the powers and duties of said office,” then Congress can name which “Officer” shall act as president until the original president has recovered or a new president is elected. The legal issue is whether the speaker is considered an officer.
On the one hand, there is some evidence that the drafters of the Succession Clause understood “Officers” to mean executive officials (like members of the Cabinet) and not legislators. This would mean Congress lacks the power under the Constitution to place the speaker of the House in the presidential line of succession. There are also structural reasons why a legislative leader may not be the best choice to serve as acting president. For instance, it could create a conflict of interest in the event of impeachment proceedings. On the other hand, there are two places in the Constitution in which the term “Officers” is used to refer to legislative officials. And members of the Second Congress apparently believed that placing the speaker in the line of presidential succession was permissible. In addition to potential legal landmines, there are plenty of political questions to consider when it comes to the current line of succession. If the Electoral College elects a Republican president and vice president, there is something rather problematic about installing a Democratic speaker as the acting president (assuming the speaker at the time is a Democrat). Scholar-commentators (including me) have been arguing for reform here for decades, consistently—regardless of which party was in power. What is the solution here? Congress could always pass a new statute, consistent with the Constitution, that provides that the third in line for the presidency must be a member of the Cabinet, like 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 leading our country, it feels best not to wait for a catastrophe to clarify this relatively key point. The Trump era has brought us plenty of fascinating legal hypotheticals. But, if Gaetz’s fundraising somehow sparks a push for Trump to become speaker, we may be seeing more musings along these line soon. Changing the presidential line of succession could quickly become impossibly politically charged. Imagine a world — with both Biden and Vice President Kamala Harris indisposed — in which Secretary of State Anthony Blinken and Speaker Donald Trump contend that they are each the acting president. It’s an unlikely (and dystopian) scenario — but not a technically impossible one.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
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
