User's manual to House gambit to temporarily sidetrack Jordan and install McHenry as interim speaker

House Judiciary Committee Chairman Jim Jordan, R-Ohio, won’t face another round of voting for speaker today. He was expected to lose additional votes.

So Jordan is now getting behind an interim plan to empower House Speaker Pro Tempore Patrick McHenry, R-N.C., as acting speaker on a temporary basis. Jordan would remain the GOP "nominee" for speaker and try to round up the votes by January. However, it is unclear that Jordan could EVER get the votes to become speaker considering how upset members are at him for purported strong-arm tactics.

Here’s the problem: Empowering a speaker pro tempore is historic, and the situation is mostly unprecedented. There are major legal, constitutional and parliamentary questions about this gambit. And it is far from clear thar House Republicans are even remotely close to backing this plan. 

The House has never had an "acting speaker." Any legislation approved by Congress during this interregnum could potentially face a court challenge.

JORDAN TO CANCEL THIRD VOTE, WILL BACK MCHENRY AS INTERIM SPEAKER THROUGH JANUARY

House Judiciary Committee Chairman Jim Jordan failed in his bid to become speaker on Tuesday after all Democrats and 20 members of his own party declined to vote for him. (Tom Williams/Getty Images)

Some Republicans walked out of the GOP meeting, bewildered at the plan. Many do not know if this maneuver to empower McHenry would even work. It’s not even clear whether most Republicans would support this plan. In fact, one Republican said to Fox this was the plan "for now" and fully expected it to implode shortly.

However, other Republicans feel a note of desperation. They know that the House will continue to be paralyzed unless they have a speaker and can advance legislation. That’s why they want to install McHenry. Opponents of this effort are accusing Republicans of "working with Democrats" to make this happen in an effort to dissuade them.

This reflects the intense backstabbing and internecine warfare which is now playing out inside the House Republican Conference. There is deep distrust and division right now. And they are watching House power disintegrate in front of them if they can’t vote.

Rep. Jim Jordan talks to Speaker Pro Tempore Rep. Patrick McHenry as the House prepares to hold a vote on a new speaker at the U.S. Capitol on Oct. 18, 2023. (Win McNamee/Getty Images)

Regardless, it is unclear if McHenry could just assume power now. The post 9/11 law that created the position of the speaker pro tempore was to maintain continuity of government in case a major terrorism attack killed the speaker and many members of the body. There is one argument that it is IMPLIED that the speaker pro tempore can act no matter what to keep the House functioning and pass legislation. That’s because the post 9/11 law didn’t want the House to be paralyzed. However, that legislation was drafted for a different set of circumstances.

HOUSE OF REPRESENTATIVES STAYS IN LIMBO AFTER JORDAN FAILS ON SECOND VOTE FOR SPEAKER

Some lawmakers believe the House must adopt a resolution to empower McHenry on a temporary basis. That would involve a debate and vote. However, a senior House source doubted there would be any debate or vote on such a measure any time soon.

Regardless, there may be some constitutional validity to the House being able to empower McHenry as interim speaker. Article I, Section 2 of the Constitution says that the House "shall chuse their Speaker and other Officers." Article I, Section 5 of the Constitution says that the House "may determine the Rules of its proceedings."

It is thought that the Supreme Court would point to these clauses as justifying House action to grant McHenry leeway. But this is uncharted parliamentary and legal water. They’ve never just appointed an acting speaker.

The House has been without an elected leader since Rep. Kevin McCarthy was ousted from the speakership on Oct. 4 in a move led by a small group of conservative members of his own party. (Win McNamee/Getty Images)

That said, there is a question about what constitutes "other Officers." The House clearly selects a "Clerk of the House," a "Parliamentarian" and a "Sergeant at Arms." But tapping a "Speaker Pro Tempore" could be extra-constitutional.

Members are really up in arms about the McHenry plan – despite Jordan’s backing. So, it’s hard to see if this in fact becomes the plan the House goes with. 

Over the past several months, House Republicans have quickly crafted a plan on the debt ceiling, spending bills, an interim spending package and even two euthanized candidacies for speaker – and abandoned that very scheme hours later.

It is too early to tell if this is the route for the "McHenry Plan." But there is stark opposition from many Republicans.

Chad Pergram currently serves as a senior congressional correspondent for FOX News Channel (FNC). He joined the network in September 2007 and is based out of Washington, D.C.