Is an acting House speaker considered in the presidential line of succession?

With the increasing likelihood that House Republicans will empower Speaker Pro Tempore Patrick McHenry to run the House temporarily amid its speakership crisis, another question looms: Would the move put an acting speaker into the line of presidential succession?

When all leadership positions are present and accounted for, the speaker of the House is usually second in line to take up the mantle after the vice president.

But legal experts say that even empowering McHenry to move legislation isn't the same as being the real thing.

“By calling this person speaker pro tem, that by definition, means there isn't an actual speaker,” said Michigan State law professor Brian Kalt. “So whatever powers they give him, parliamentary powers to run things in the House, as long as he's not the speaker, he's not in line of succession.”

Kalt said that the Presidential Succession Act of 1947 states that the speaker must be the speaker, leaving no wiggle room for a speaker pro tem to be in line.

Eric Schickler, co-director of UC Berkeley's Institute of Governmental Studies, concurred.

“Speaker pro tem, even if authorized to act as if he were the speaker or with some of those powers, it's still not the same,” Schickler said.

House Republicans have been in a whirlwind leadership crisis since voting for Kevin McCarthy to be removed from his speaker post earlier this month. Rep. Jim Jordan’s second failure to win the votes to secure the gavel for himself on Wednesday has sparked bipartisan talks about empowering McHenry to bring legislation to the floor — particularly spending bills, given a Nov. 17 funding deadline. POLITICO reported earlier Thursday that Jordan will back that proposal as he pauses voting on his own speaker bid.

And since a President McHenry wouldn’t become a contingency plan, the line would skip to Sen. Patty Murray (D-Wash.), who is the president pro tempore of the Senate and typically third in succession to the presidency.

This means that House Republicans would be skipped over if President Joe Biden or Vice President Kamala Harris were unfit to serve, which could cause a dispute between Republicans and Democrats.

Schickler said that in the unlikely event that the president and vice president can’t serve, a court battle could ensue over who would become the leader of the country.

“One of the issues with succession law is that by putting the speaker next in line, the speaker could be from a different party,” Kalt said. “It could cause a lot of problems.”