The prospect of Donald Trump becoming speaker of the House, should Republicans regain the majority after the November election, is tantalizing. The House is the most populist part of the federal government. As speaker, Trump could do much to force some downsizing of the deep state, depending on the size of Republican majorities in both Houses. Meanwhile, the deep state would lack the same ability to undermine him, as it did while he was president.
At a Trump rally on March 26th in Georgia, Congressman Matt Gaetz (R-Fla.) again raised the possibility of Trump as speaker. Assuming that Republicans will gain the majority in the House, Gaetz said that he would make the motion for Trump’s election as speaker of the House.
In 2015, after John Boehner (R-Ohio) stepped down as speaker, the possibility of a non-member of the House assuming the post was bandied about. The House had never elected a non-member as speaker and, it was generally agreed, the founders would not have approved of such a development. Nevertheless, at the time a number of serious people concluded that a non-member could become speaker.
Because the entrenched power of the administrative state prevents it, even a forceful and popular president cannot “drain the swamp.” The deep state, as Trump learned while president, has many ways to resist and undermine a president’s policies. And since the president, not the administrative state, was elected by the people, this is just another way of saying the administrative state can resist the sovereign authority of the electorate. Of course, even if the administrative state had not grown so dominant, the Constitution’s separation of powers limits what a president can accomplish without the cooperation of Congress.
A determined and forceful speaker of the House theoretically could do much more to weaken the permanent bureaucracy, whose creatures feed on federal funding. Unfortunately, too many Republican members of the House are tied into swamp creatures who, in addition to lobbying for their corporate interests, are involved behind the scenes in promoting them for campaign funding. Too often, so-called conservative Republican members of the House serve up red-meat rhetoric for the voters while throwing the steak into the swamp.
Newt Gingrich, who was a determined and forceful speaker and who accomplished much, nevertheless lost to President Clinton in the contest over a government shutdown. So why would a Speaker Trump do any better against the current president? Clinton had, and Biden would have, strong support from the mainstream media which always takes the Democrats’ position on spending and government bureaucracy. Moreover, the structure of the Constitution gives presidents the ability to resist the Congress, not only through the veto power, but also through an often-overlooked advantage.
Although Gingrich had been elected by the Republican majority in the House to be speaker, he had been elected by voters only in one congressional district in Georgia, not a national constituency. A major strength for presidents against Congress is the deliberate constitutional choice to make the presidency the only constitutional office within the two political branches to represent the whole country.
Unlike Gingrich, however, Trump has been elected president and retains a fiercely loyal, national base. Despite his lack of discipline, Trump accomplished much as president. Potentially, he could accomplish more as speaker with the power of the purse against a weak president like Biden.
The main obstacle to Trump becoming speaker of the House is the belief that he would first have to be elected a member of the House. Although I originally thought, as others still do, that it would be constitutionally permissible for the House to elect anyone a majority wanted, the language of the Constitution is to the contrary. The issue is a textual one, but textualism—as Justice Antonin Scalia’s writings on interpretation remind us—includes context, notably nearby text.
The last paragraph of Article I, Section 2 begins: “The House of Representatives shall choose their Speaker and officers.” From this piece of text, some have concluded that the Constitution does not prevent a majority of the House from choosing a non-member.
That conclusion, however, ignores the text of the first sentence of Article 1, Section 2, which states “The House of Representatives shall be composed of members chosen every second year by the people of the several states.” To be part of the House, then, one must be a “member.” Members must be chosen by the people. The text suggests there is no room for a non-member to become part of the House, even as speaker.
If he chose to, Trump could run this fall for the House from a district in Florida. Conventional wisdom would predict that he would never run for such a low office after being president. Actually, the same argument was made to former President John Quincy Adams after serving only one term. One of the country’s most distinguished statesmen, Adams then served 17 years in the House.
So service in federal office after being president is not unprecedented. In addition, the first president ever impeached, Andrew Johnson, returned as Tennessee’s senator to the body in which the majority voted to convict him, although the vote was one short of the constitutionally required “two thirds of the Members present.”
It is also not unprecedented, although extraordinary, for a first term representative to become speaker of the House. Another statesman, one considered among the greatest members of Congress, Henry Clay, was elected speaker of the House as soon as he joined the House. Known as “the Great Compromiser,” an appellation which today strikes a negative note, Henry Clay today would best be described as the “the Great Deal-Maker.”
If Trump were elected to the House and became speaker, he would certainly add to his uniqueness. As great a statesman and deal-maker Henry Clay was, he failed on three attempts to be elected to the presidency. Trump would become the only person in American history to hold the two titles, president and speaker of the House.
Even if Trump decided to run for the House, however, he would have a difficult time getting elected in heavily Democratic Palm Beach County, currently part of a district represented by a Democrat. Moreover, uncertainty hangs over Florida’s reapportioned congressional map with Governor Ron DeSantis having just vetoed the plan passed by the Republican state legislature.
Once again, it helps to read the words of the Constitution. The Constitution only requires a member of the House to live in the state of the candidate’s election, not in the district where he or she is elected.
Regardless of the shape of the new congressional map, Florida will have a number of very Red districts, where presidential candidate Trump drew large majorities in 2016 and 2020. Given that Representative Gaetz will not be able to move the House to elect a non-member for speaker, maybe he will step aside and propose that Trump run in his district.