McHenry became speaker pro tempore — or “for the time being” — when the seat was vacated by the vote to oust Kevin McCarthy on Oct. 3.
The Constitution says nothing about the authority of the House speaker or what happens when the position is vacant. The process for replacing the speaker is instead laid out in the House rules, a set of procedures and protocols adopted every two years at the beginning of a new Congress.
The relevant section governing a vacancy in the speakership is known as House Rule 1, Clause 8, and was first enacted to ensure the continuity of government in the wake of the 9/11 attacks. None of the provisions of the rule directly envision the situation the House currently finds itself in — that is, a vacancy prompted by a vote to remove the speaker, not illness or incapacitation — but the rule does offer some insight into McHenry’s authority.
After McCarthy was elected, he drafted a secret list of names of members who should act in his stead should a vacancy arise, under a process established in Rule 1. McHenry was apparently at the top of that list and was designated to “act as” the speaker pro tempore.
The rule says this about McHenry’s authority:
In the case of a vacancy in the Office of Speaker, the next Member on the list … 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.
What exactly “that end” refers to — the election of a new speaker, or exercising the speaker’s authorities — is subject to debate. McHenry and some scholars have interpreted it to mean that he can only take actions necessary to elect a permanent speaker. Others, including McCarthy, have said McHenry already has all the powers of a permanent speaker and doesn’t need the approval of the House to exercise them.
In any event, McHenry’s interpretation seems to have prevailed, and the House has the power to determine what happens next. The various proposals for empowering him would elect him speaker pro tempore outright, removing the “acting as” designation and allowing him to assume some of the powers of a permanent speaker, albeit for a short period of time. This would allow the House to resume normal business and begin taking up bills again. Jordan backs a plan to extend McHenry’s authority until Jan. 3, and other proposals have different timeframes.
Whether such a plan could attract the support of a majority in the House remains to be seen. Many Republicans emerging from a conference meeting Thursday said they oppose such an arrangement, meaning it would require some level of support from Democrats, who are sure to demand concessions in exchange for their votes.
