The speaker is chosen by the members of the house. But I have recently read that there is actually a law that only the speaker can administer the oath of office to representatives. This seems to be self-contradictory.
Please avoid hijacking this over the current situation even if that is what made me aware of it.
Although not yet sworn in, the incoming representatives are the ones who select the Speaker, who then swears everyone in.
At the start of a new Congress, those voting to elect the speaker are representatives-elect, as a speaker must be selected before members are sworn in to office; the House of Representatives cannot organize or take other legislative actions until a speaker is elected.
And, this is exactly what happened in January of 2023, when Kevin McCarthy was the main candidate for the Speakership. Due to a fractious GOP caucus, it took fifteen votes, four days, and a lot of concessions made by McCarthy to holdouts, in order for him to finally be named the Speaker; until he was, the incoming House could conduct no other business.
[Moderating]
Edited title to be more clear.
It is, but the election of speaker is a special case. As is often the case, our founding fathers could have been more precise in their wording.
My suspicion is that they didn’t really consider the possibility that the election of a Speaker would ever become more than a collegial formality.
Technically, the Speaker of the House doesn’t need to be a member of the House.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
By this wording, anyone could administer this oath, not necessarily a presiding officer. The current system is because of House Rules. The way that the founding fathers worded it, there is no reason that the House could not have a Speaker Pro-Tem (like make it the Clerk) administer the oath at the beginning of the session.
Electing the Speaker first and only then swearing in the members was exactly how it was and is done in the UK House of Commons. The only difference was that at Westminster in the eighteenth century the oath was administered not by the Speaker but by royal commissioners and that this is now being done by one of the Clerks.
It still seems utterly illogical to me.. If the members-elect have not been sworn in, how can they choose a speaker? Remember that Coolidge was sworn in as president by his father who happened to be a magistrate or something in NH. And LBJ by someone on the plane back to Washington.
Sounds like the usual bootstrapping process that comes with the root of power problem.
In a monarchy it is easy. The monarch appoints the legislature. No pre-existing root of power and you magic the structure into place with a bit of sleight of hand. If the rules say that the person with the power to do the swearing in is created in a certain way, that is how they are created. The rules could say that you choose the first random person to walk into the building after 12 noon. Doesn’t matter. Just that there is a rule. It is the rule that creates the power, not the participants.
Especially how the Speaker is sworn in by a member before the Speaker swears in the members. But then there are no members to swear in the Speaker until they themselves are sworn in..
Right. So it could be changed if the House themselves so wished.
In several states they use the system alluded to in another post, of having the Clerk acting as Speaker ProTem for the exclusive purpose of the swearing in.
It should be mentioned that very little of the procedures of the House or Senate are laid out in the Constitution. Mostly, it just says that each house will set their own rules.
Is choosing a Speaker a legislative act? Perhaps it’s just an administrative act that members-elect are legally eligible to do because it falls outside their role as Representatives.
Or the Senate. It can be anyone in the Chair, the Secretary or Assistant Secretary.
The presiding officer, for the time being, of the Senate of the United States, shall have power to administer all oaths and affirmations that are or may be required by the Constitution, or by law, to be taken by any Senator, officer of the Senate, witness, or other person, in respect to any matter within the jurisdiction of the Senate.
The Secretary of the Senate, and the assistant secretary thereof, shall, respectively, have power to administer any oath or affirmation required by law, or by the rules or orders of the Senate, to be taken by any officer of the Senate, and to any witness produced before it.
2 USC 23 & 24
Constitutional act as Representatives
The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.
Article I, Section 2, Clause 5
Except choosing the Speaker as a body is in there. See above.
As a law it would also need to pass the Senate and be signed by the President. Which calls into question if making it a law and not a House Rule is Constitutional.
The Constitution says that they’ll choose their speaker, but it doesn’t say anything about how.
I thought it germane that it says the House will choose a Speaker, but if the members are not sworn in there is no House of Representatives.
Curiously, I don’t think there is any requirement that anyone is sworn in. That just seems to be a conventional nicety.
The terms of the houses and president are not determined from the time they are sworn in, rather they are set by an exact time and date. At 12 noon, president and representatives start their term. Nothing in the constitution says they must take any sort of oath of office.
Most usefully, transfer of power is atomic, without any oddities like the country not actually having a government for a period of time.
It’s in Article VI:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
But that still doesn’t necessarily mean the oath is a precondition to taking office. The President has to take the oath “Before he enter on the Execution of his Office” but nobody else is given any deadline.