The fifth clause of Section 2 of Article I of the Constitution reads:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
It was the intention of the founders that the Speaker of the House of Representatives and the other Officers (Clerk, Sergeant at Arms, Chief Financial Office and Chaplain), be elected by a majority of the whole United States House of Representatives and thereafter serve at the pleasure of the whole United States House of Representatives.
The Office of Speaker Pro Tempore has existed nearly from the beginning, but has always, except in a few brief cases, existed as a delegation of the power of the Speaker, serving on appointment of the Speaker and at the pleasure of the Speaker. When a Speaker died or voluntarily resigned, all associated Speaker Pro Tempore appointments terminated with his death or resignation.
There have been a few exceptions, but in ALL those cases, the individual was elected by the House and served at the pleasure of the House, all of these cases lasting usually a day or a few days at most.
For example, in an early Congress, a particular Speaker (I am thinking either Jonathan Trumbull or Jonathan Dayton) was indisposed by illness. The House elected a Speaker Pro Tempore to preside over the House during his absence. The point to take away is that these individuals were elected by the House, served at the pleasure of the House and thus were responsible to the House.
In general (when there is an incumbent Speaker) the Speaker Pro Tempore is appointed by that Speaker and answers solely to the Speaker.
However, until now, there has never been a Speaker or Speaker Pro Tempore serving in the absence of an elected Speaker who has not held his office by election of the House and who has not served at the pleasure of the House.
There is a longstanding common law dicta of the principal/agent relationship. For example, I served as power of attorney for both my parents. That relationship ended automatically upon their respective deaths. The Speaker is the principal and the Speaker Pro Tempore is the agent. The agent only holds power so long as the principal is alive or holds the office for which he has granted the agency.
The instant that McCarthy was removed as Speaker (principal), his purported succession list ceased to have force and effect and the purported members of the Speaker Pro Tempores (agents) list ceased to have any legitimate claim to the office.
The House of Representatives have two and only two constitutional options.
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Elect a Speaker in the regular form.
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Elect (by vote of the whole House) a Speaker Pro Tempore for a limited term, who would serve at the pleasure of the House during his elected term length.
Governance by a man who was not elected by the whole House nor appointed by an incumbent Speaker and thus owes no accountability to the House is unconstitutional and violates the common law dicta of principal/agent.
To Patrick McHenry’s credit, he has vowed not to exercise broader power without a vote of the whole House.
