In a bid to stave off a governing crisis and address pressing funding battles and international threats, House Republicans have considered empowering acting Speaker Patrick McHenry to temporarily wield the powers of the speakership. However, according to a report by POLITICO, this move may invite serious legal challenges.

The proposal to grant McHenry the authority to lead the chamber has faced resistance from the House's right flank, leading some Republicans to argue that McHenry already possesses the necessary authority to run the House. Former House counsel Stan Brand cautioned that such an interpretation carries significant legal risks and urged caution in pushing the limits of legislative action.

Acknowledging these risks, McHenry has informed Republicans that he will step down from the pro tem speaker position if pressed to assume more powers without a formal vote. The House has broad constitutional authority to establish its own internal procedures, and a majority vote to grant McHenry temporary powers is likely to hold up in court, assert three former House lawyers. Federal courts have typically upheld challenges to the chamber's internal procedures based on the House's wide latitude to govern itself.

Nevertheless, without a formal vote, expanding McHenry's powers could lead to legal challenges both internally and externally, casting uncertainty on the validity of legislation passed without full House imprimatur. Former House counsel Thomas Hungar suggested that the safest course of action would be a House resolution explicitly specifying the powers that McHenry can exercise.

Speaking on the issue, McHenry emphasized his commitment to preside over the election of the next speaker but stressed that a formalized vote for a speaker pro tem can be constitutionally achieved. The lack of precedent to guide this largely untested dynamic has left members grappling with the best path forward.

McHenry's potential ascension to the speakership traces back to a system implemented after the September 11, 2001 attacks, designed to ensure continuity of government. While McHenry maintains that the language of the rule limits his authority to facilitating speaker elections, some Republicans argue that it grants him full control over the House, given its intended purpose of guaranteeing continuity of government during national emergencies.

House Republicans have discussed various options to protect McHenry's actions from legal challenges, including forcing a vote or formally electing him as a temporary speaker with expanded powers. However, the proposal to empower McHenry has been put on hold as Republicans navigate a wide-open field and search for consensus following Jim Jordan's unsuccessful bid for the speakership.

The notion of a vote to empower McHenry appears to face significant opposition from the conference's right flank. Freedom Caucus Chair Scott Perry even presented a resolution seeking to remove McHenry from the pro tem speaker position if elected. The lack of an elected speaker raises parliamentary questions regarding the transfer of power to a temporary speaker.

Amidst this uncertainty, it remains crucial for GOP lawmakers to consider a formal, affirmative vote, as the deadlock in the House brings the nation closer to a self-inflicted crisis. The wise course of action may depend on the urgency for House action and the nation's growing desperation as time runs short.