How much power does Speaker pro tempore McHenry have?

Notes on precedent-setting in truly unprecedented situations

UPDATES: See the bottom of this post for updates made on Wednesday evening, 10/4 and Thursday morning, 10/5.

At 4:46pm yesterday, the Office of the Speaker of the U.S. House of Representatives was declared vacant, following the 216-210 adoption by the House of H.Res.757, a resolution offered by Republican Representative Matt Gaetz (FL-1) as a Question of Privilege from the House floor (and popularly known as a “motion to vacate.”)

The moment the Speakership was declared vacant, Rule I, Clause 8(b)(3) was triggered, which reads:

(A) In the case of a vacancy in the Office of Speaker, the next Member on the list described in subdivision (B) shall act as Speaker pro tempore until the election of a Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.

(B) As soon as practicable after the election of the Speaker and whenever appropriate thereafter, the Speaker shall deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore under subdivision (A).

Consequently, immediately after the Office of Speaker was declared vacant, the Clerk read a letter from the acting Clerk of the House, Kevin McCumber, which reported that the letter Speaker McCarthy had delivered to the Clerk on January 7, 2023, upon becoming Speaker, named Republican Representative Patrick McHenry (NC-10) Speaker pro tempore under the terms of Clause 8(b)(3)(A).

McHenry took the chair, reread the terms of Clause 8(b)(3)(A) and the authorities it bestowed upon him, and then announced he was recessing the House under the Rule I, Clause 12(a) authority of the Speaker to recess the House at the call of the Chair when no business is pending, so that the party caucuses/conferences could meet and plan for the upcoming Speaker election.

Now what…exactly…can happen?

All of this immediately raised a question: how much of the authority of the Office of the Speaker does McHenry actually have? Can the House operate normally while we await the election? Or are we stuck in a holding pattern until then? Or something in between?

There is literally no direct precedent to guide us on this question; Rule I, Clause 8(b)(3)(A) had never been triggered prior to yesterday, and it was not designed with the current situation—a vacancy due to a political removal of the Speaker—in mind. It was added to the House rules in the wake of 9/11 (H.Res.5, 108th Congress), in an effort to bolster the continuity of government in the event of an emergency that left the Speakership vacant due to death or incapacitation, based on a recommendation of the Cox-Frost Bipartisan Continuity of Congress Task Force. There’s no past practice for its implementation.

The question partially hinges on how you interpret the last sentence of Clause 8(b)(3)(A), and especially the last three words:

“Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.” [emphasis added].

Is “to that end” a reference to the election of a new Speaker? Or is it a general reference to the “acting as Speaker pro tempore”? Is his authority only to get us through the election, or does he have the full authority of the Speaker until we get through the election?

Prior to yesterday, I took the wider view. Since the clause was put in as a continuity of government provision, it seems like normatively we would want the Speaker pro tempore to have as much power as possible in an emergency situation. If all he can do is preside over an election of Speaker, that doesn’t seem particularly important or helpful—we already have the Clerk do that on the first day of Congress, before the Members-elect are sworn in and House Rules are adopted.

In my view, a Clause 8(b)(3) Speaker pro tempore could use all the powers of the Office of Speaker necessary to conduct business in the House, including referring bills to committee, recognizing Members to call up legislation, and entertaining motions to suspend the rules and pass bills. Essentially be the equivalent of the familiar designated Speaker pro tempore under Rule I, clause 8(a) that preside over business day to day in the House, or an old-fashion elected Speaker pro tempore.

This is not to say that the Speaker pro tempore could block the election of a Speaker. A motion to proceed to the election of a Speaker is highly privileged, but if the House rejected that motion (or if it wasn’t offered), the Speaker pro tempore could preside over normal business, after the House had affirmatively temporarily set aside the election of the new Speaker.

Others, however, disagree. The most narrow reading of 8(b)(3) is that the Speaker pro tempore only has the authority of the Speakership in regard to conducting the election for the new Speaker. This might be analogous to the authority of the Clerk on the first day of Congress, when there are no House rules and the election of the Speaker is conducted under the general parliamentary law. The Clerk presides, can rule on points of order, has the power of recognition, and can maintain order in the chamber. But beyond that, there’s not much she can do except conduct the election.

Of course, a Clause 8(b)(3) Speaker pro tempore isn’t the clerk, and isn’t operating under the general parliamentary law of the first day. He is a Member of Congress operating under the House rules, which provide significant authority to the Speaker and, indeed, create the 8(b)(3) Speaker pro tempore. So it’s possible the Speaker pro tempore has more power than the Clerk on opening day because of the House Rules being in place, but can still only use those powers to the end of conducting the election for a new Speaker.

Yeah, But What Does it Mean This Week?

Of course, that’s all theoretical. Zooming back in to today, concrete questions now occur. Can McHenry attempt to conduct any normal House business during his time as Speaker pro tempore? What authorities of the Speakership can he invoke? How does he view his own current power?

These questions are important, both short-term and long-term. In the short term, the government is operating under a Continuing Resolution, which expires next month. The House adopted a special order of business last week (H.Res.756) to consider two of the general appropriations acts. But if McHenry does not have the authority to bring them to the floor, the appropriations process is essentially stalled until a Speaker is elected.¹

In the long term, these questions are important because the actions McHenry and the House take this week are going to set all new precedents for future Rule I, clause 8 Speakers pro tempore. Many of these will be soft precedents; McHenry will simply take (or decline to take) actions using authorities of the Speaker, the House will not stop him, and there will be an implied ratification. We could also see hard precedents set, if McHenry took an action, someone raised a point of order, he ruled, and the House voted on appeal to either sustain or overrule him.²

McHenry, of course, is constrained by a lot more than just Rule I, clause 8. Like all legislative leaders, he has to consider the opinions of his party conference, the entire House, and public opinion. Whatever his actual authority is as Speaker pro tempore, he might choose not to use it for political reasons.

For instance, whether or not he has the authority to begin consideration of the general appropriations bills made in order by the special rule, it seems politically unwise to force that contentious debate upon the Republican majority right now. It would only inflame the coalition tensions that McHenry is, in some sense, trying to resolve. It could easily cause a revolt in the conference against him.

This creates something of a normative problem. As Molly Reynolds pointed out on Twitter, McHenry may make short-term political choices about his authority as that set precedents going forward and constrain future Rule 1, Clause 8 Speakers pro tempore. In one sense, this is just how things always work. We don’t typically set precedents by sitting around and philosophically debating them; things happen, actors make decisions, people object or not, and precedents are set.

The concern here is that McHenry has not ascended to his position in the manner or circumstance envisioned by the original authors of the Rule I, Clause 8 Speaker pro tempore. They were concerned with continuity of government. Had the first Rule I, Clause 8 Speaker pro tempore been created because of a terrible emergency situation at the Capitol, it is likely they (and the House) might take the wide view of their authority, given that it might be required to pass emergency legislation prior to the election of a Speaker.

Thankfully, that’s not why we are here. But in the horrible event we do end up in that situation in the future, the McHenry precedents—which might be much more constraining on the Speaker pro tempore—could become an obstacle that needs to be politically overcome.

So What Are The McHenry Precedents So Far?

All of this talk is well and good, but it’s important to examine what Speaker pro tempore McHenry has actually done in his first 12 hours in the chair. Best I can tell, he’s done four public things that can nebulously be seen as in the realm of Speaker authority or resources.

• He recessed the House under the Rule I, Clause 12(a) authority, which allows the Speaker to recess at the call of the Chair when no business is pending in the House.

This is significant because (1) it strongly implies the Speaker pro tempore is not simply the equivalent of the Clerk on opening day, who does not have recess authority. He has at least some of the authority of the Speaker from the House rules; and (2) he declared the recess from the chair and no one in the House objected. That doesn’t set a hard precedent, but it’s passive evidence the House agreed with the authority.

• He ordered former Speaker Pelosi and former Majority Leader Hoyer to vacate their Capitol hideaway space, under the Speaker’s Rule I, Clause 3 authority to control the House wing of the Capitol.

This is very significant, in my view, because unlike the recess authority, it’s hard to see how this is related the election of a new Speaker, or at least it’s much less directly related. While it’s easy to read the recess authority as being “necessary and appropriate” to “the end” of conducting the election, it’s harder to see how control of the House wing of the Capitol fits that narrow view of Rule I, Clause 8.

• He reportedly announced that he would not be referring bills or taking up legislation until the election of the Speaker is conducted.

This is the most significant action/precedent in favor of the narrow reading of the authority. The Speaker does not have the discretion to refer or not refer introduced bills; under Rule II, Clause 2(a), he is require to refer all bills that are introduced.³ If McHenry does not believe he has the authority/duty to do this, he clearly believes he does not have the full power of the Speaker outside the context of the election, even for mundane things. Not doing bill referral grinds the legislative process to a halt. It also implies he might believe he does not have the power to sign enrolled bills and send them to the president.

• He has been given a sizeable protective detail, on par with what a normal Speaker would have.⁴

This is the weakest evidence regarding his authorities, but mildly points toward a wider view of the Speaker pro tempore.

So…what now?

It appears that McHenry’s plan is to give the parties and the potential Speaker candidates the rest of the week to organize, with the intention of the parties holding candidate forums (and perhaps nomination votes) early next week, with a goal of having the election on Wednesday, October 11.

Until then, it appears the House will remain in recess at the call of the Chair except to briefly return pro forma to fulfill its constitutional obligation not to be out of session for more than 3 days without the agreement of the Senate. No business is likely to be conducted.

Whether this was the plan when Rule I, Clause 8 was written or not, it now has become soft precedent and will carry a lot of weight in the future, assuming McHenry and /or the House do not change course and do something different.

It, of course, does not bind a future House, which is free as always to change its rules or reinterpret its precedents. But for now, the precedent seems set: the House will not take up other business under a Rule I, Clause 8(b)(3) Speaker pro tempore this week, because some combination of Speaker pro tempore McHenry and the House as a whole either do not believe he has the authority, or no Members want to challenge him on his decisions.

And that’s fine! This is how institutions develop, and I suspect McHenry will be among the steadier hands we could have in this position as the House takes on a mid-Congress contested Speaker election. But such precedents need to be observed and considered, since as they inevitably drift from intentions of the Members, past or current, the more likely they are to need considered revision.

UPDATE (6:49pm, Wednesday October 4): Congressman McGovern, ranking member of the Rules Committee, upset at McHenry using the Rule I, Clause 3 authority to vacate Pelosi and Hoyer from their Capitol hideaway offices, provides some strong evidence for the narrow view:

This is strong evidence that, just after the adoption of the new rule, the Rules Committee believed in the narrow view.

Normatively, this doesn’t make much sense to me: if we are concerned about continuity of Congress, it seems to me that one thing we don’t want is an emergency situation where there’s a prolonged contest for the Speakership, and during it the House doesn’t have a leader who can call up legislation.

But it certainly seems to have been the prevailing view of at least some official accounts of the rule at the time.

UPDATE: (11:30am, Thursday 10/5): I made this chart to help organize thinking about different models of power a Rule I, Clause 8(b)(3) Speaker Pro Tempore might have:

It suggests four models:

• a very narrow model, in which the SPT was essentially no different than the Clerk and would only have Clerk-like power for running the election;

• a narrow model, in which the SPT would be like an enhanced Clerk, with the ability to use some powers of the Speakership that were directly related to the election, such as the Rule 1, Clause 12(a) recess authority

• a wide model, in which the SPT would have roughly the authority of a designated Speaker Pro Tempore in normal house proceedings, with the power to call up bills pursuant to special rules and entertain suspensions;

• a widest model, in which the SPT has virtually the full authority of the Speaker, perhaps every authority except the ability to become president under the Succession Act.

In green I have coded actions McHenry has specifically taken, and in red I have coded actions McHenry has specifically not taken. In my view, it’s pretty inconsistent; an SPT who has the authority to control the House wing of the Capitol office space should probably have the authority to refer bills and manage legislative business on the floor.

1. The two bills—H.R. 4394 (Energy and Water Appropriations Act) and H.R. 4364 (Legislative Branch Appropriations Act)—seem like the lowest-bar for Rule I, Clause 8 Speaker pro tempore authority to reach the legislative process. The special rule was adopted by the House prior to the vacating of the Office of the Speaker, and the rule specifically states that “at any time after the adoption of this resolution, the Speaker may…declare the House resolved into the Committee of the Whole House…for consideration of the bill (H.R. 4394)..” If McHenry does not have the authority to do that, it’s hard to see how he has any legislative authority beyond the election.

2. Imagine, for instance, if McHenry attempted to entertain a motion to suspend the rules and pass a non-controversial bill, or to call up one of the general appropriations bills made in order by the special order of business adopted this week. A Member might raise a point of order against his authority to do so, on which McHenry would have to rule. An appeal would then setup a decision by the House, which would set a hard precedent.

3. “The Speaker shall refer each bill, resolution, or other matter that relates to a subject listed under a standing committee named in clause 1 of rule X in accordance with the provisions of this clause.”

4. To be crystal clear about one thing — McHenry is emphatically not in the presidential line of succession under the Succession Act of 1947. Regardless of his authorities, he is not the Speaker of the House. For the purposes of the Succession Act, the Speakership is currently vacant and, if the presidency and vice-presidency were to become vacant, President Pro Tempore of the Senate, Patty Murray, would become Acting President.