Can the House Legislate?

October 5th, 2023
The US government is in a less functional position than usual:

  • Legislation requires (among other things) a plurality vote of the House of Representatives.

  • This requires the Speaker of the House to call a vote.

  • This requires a Speaker of the House

  • The House removed its Speaker on Tuesday

We've never done this before, so it's unclear how it will go. The House does have a "Speaker pro-tempore" backup, added in 2003, but it's not clear whether they are allowed to use this position to call votes other than for a new speaker, or, if they would even if allowed:

In the meantime, other action on the House floor, including any legislative business, is likely to be halted. House staff aides believe the acting speaker may wield the gavel only to administer the election of a new speaker.

But others argue that as acting speaker, Mr. McHenry can exercise powers beyond overseeing a speaker's race, as long as a majority tolerates it.

"From an institutional House rules perspective, Speaker McHenry has the powers of the speakership, and he will continue to exercise those powers to the extent and degree that the majority party is willing to tolerate," said Josh C. Huder, a senior fellow at the Government Affairs Institute at Georgetown University. "If he does something too brash or too bold, they will rein him in. And that's really the only thing that's governing his authority."

House rules do not explicitly prohibit the interim speaker from adopting the powers of an elected speaker. But the rule that led to Mr. McHenry's ascent was developed with only temporary absences in mind, not a vacant chair, according to Stan M. Brand, the former general counsel to the House. That leaves legal room for Mr. McHenry to exercise broader powers, such as conducting legislative business, if he chooses.—NYT, 2023-10-04

I've started a prediction market, which as of this writing is at 20% with four traders:

I set the resolution conditions as:

Resolves true if McHenry uses his current pro-tempore position to allow the House to schedule a vote for anything other than a new Speaker. Resolves false otherwise, including if a new Speaker is elected quickly enough that we don't find out whether legislating would have been acceptable.

I interpret this as a combination of whether it is strictly permitted and how long it might take to elect a new Speaker: if one can be elected quickly (market) then there's much need for McHenry to call votes. I think it's probably legally allowed but socially not (yet) allowed, and the latter is more likely to change the longer we go without being able to elect a Speaker.

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