Article 1, Section 2, Clause 5: Officers of the House; impeachment

The House of Representatives shall chuse their Speaker and other Officers;and shall have the sole Power of Impeachment.

This Clause specifies two prerogatives of the House of Representatives that are seemingly unrelated. The first is the power to choose their own officers, including their Speaker; the second is to exercise the sole power of impeachment.

The power of the House to choose its own officers seems self-evident, but the Framers specified that the President of the Senate was also the Vice-President of the United States and was chosen by the Electoral College rather than the senators. The clause here can be seen as clarifying and emphasizing that the House had complete control over its own leadership. We see this as once again asserting the supremacy of the House of Representatives as the chamber of the people, the ultimate source of legitimacy under the Constitution.

Only one officer is specifically named, the Speaker of the House, and we believe this office was called out to ensure it would have a Constitutional rank and legitimacy not less than that of the President of the Senate. It is the consensus among constitutional scholars that there is no requirement that the Speaker, or any other officer, actually be a member of the House, though every Speaker through the year 2020 has been. The duties and prerogatives of the Speaker are not specified and thus are entirely at the discretion of the House. However, by statute, the Speaker of the House is second in line to succeed the President, after the Vice-President.

It is entirely up to the House to decide what other officers are needed and to choose such officers. At present, the recognized lesser officers include the majority and finority leaders (also known as floor leaders) and the majority and minority whips, the deputy whips, the conference chairs, and the committee chairs. The function of the whips and deputy whips is to persuade members of their parties to vote with the party line, but there is no constitutional penalty for failing to do so, save the wrath of the voters or a vote for expulsion of the member (which would require a two-thirds majority and is extraordinarily unlikely.) Informal penalties include loss of committee assignments, and Representatives who embarrass their party have from time to time been stripped of all committee assignments, as happened to Duncan Hunter, Chris Collins and Steve King in 2019

Impeachment is the political equivalent of a criminal indictment, and amounts to a finding by the House of Representatives that a President, Vice-President, or civil officer of the government has committed an act warranting his removal from office and possibly his disqualification from ever holding office again. Such removal and disqualification is the ultimate political penalty under the Constitution. Only the House can initiate this process, but can return articles of impeachment on a simple majority vote. The final decision whether to impose the penalty is left to the Senate, which must convict by a two-thirds majority. We will consider who the House has power to impeach and how the Senate proceeds on impeachment in due course, but will jump ahead slightly with this observation: There is no provision for the House to impeach anyone but a President, Vice-President, or civil officer, and it is entirely the prerogative of the House to decide what constitutes an impeachable offense. The Constitution gives guidelines, but they were deliberately made so broad that the consensus of constitutional scholars is that an impeachable offense is whatever the House decides is an impeachable offense.

In other words, if the House were to decide that wearing a bad toupee was an impeachable offense, it would be an impeachable offense. This is not to say the House should regard anything it dislikes as an impeachable offense; it is only to say that the House has the sole power to decide what constitutes an impeachable offense. We will have more to say about that in due course as well. This is an example of a nonjusticiable power: The courts will not touch it, because it falls squarely within the powers of the House of Representatives, and any court ruling on the appropriateness of a charge in an article of impeachment would violate the separation of powers. The check on the power of impeachment lies with the Senate.