In 2012, Governor Mitt Romney was the Republican candidate for President of the United States, and Representative Paul Ryan (Wisconsin) ran for Vice President of the United States, as Mitt Romney’s running mate. On August 23, 2012, I published an article, on Jurist, discussing whether Representative Ryan, should he prevail in both elections, could concurrently hold both positions: Representative and Vice President. I argued that he could. In 2020, a similar legal issue arose. Then-Vice President Biden ran for President, and Senator Kamala Harris ran as his vice presidential running mate on the Democratic ticket. That ticket prevailed, and in 2021, Senator Harris was sworn in as Vice President. Harris resigned from the Senate, and her vacant senate seat was filled by appointment by the Governor of California. But did Senator Harris have to resign from the Senate? In 2020, I published an article, again on Jurist, arguing that Harris could hold both her senate seat and the vice presidency concurrently. The same issue is now upon the country. Former President Trump is the Republican candidate for President, and he has proposed Senator J.D. Vance (Ohio) as his running mate. Should the Republican ticket prevail, and should Vance become Vice President, must he resign his senate seat? (One might add that: Harris and the Democratic National Convention have yet to announce their candidate for the vice presidency. It is quite possible that the Democratic candidate for Vice President may be a Senator or Representative, and if so, the same issue will arise for the Democrats—should they prevail, as it has for the Republicans—should they prevail.)

If Senator Vance is inaugurated as Vice President, can he concurrently hold both positions—Senator and Vice President? Surprisingly, the answer is not so simple. Why? There is no on-point historical precedent where a member of the House or Senate sought to retain his or her legislative seat while assuming the vice presidency (or presidency), and the federal courts have had no occasion to speak to this precise question. However, a closely related question was addressed by the United States Supreme Court in Powell v. McCormack.

In 1966, Adam Clayton Powell, Jr. was elected to a twelfth consecutive term in the United States House of Representatives. Because of allegations of corruption, when the new Congress met in 1967, Powell was not sworn in with the other members-elect. Thereafter, a House committee produced a report which stated that Powell had, prior to the first meeting of the new Congress, wrongfully diverted House funds to himself and others. The House voted to exclude Powell, and it declared his seat vacant. Not surprisingly, Powell sued both to regain his seat and for lost salary. In Powell, decided in 1969, the Supreme Court held that the House’s refusal to seat Congressman Powell—his exclusion—was unconstitutional. In other words, the House can only exclude a member based on qualifications expressly stated in the United States Constitution: e.g., age, residency, and citizenship. Allegations of corruption, even if proven, are, as a matter of law, insufficient.

The Court’s holding was rooted in two deep structural concerns. First, ours is a written constitution. A commitment to written constitutionalism requires the courts, each house of Congress, and other political and legal institutions to respect textual limits imposed by the Constitution. The Constitution’s textual limits regarding office-holding are both floors and ceilings: Congress is not free to undermine the floors by subtracting from extant limitations, nor is Congress free to pierce the ceilings by fashioning new, additional limitations. Second, restrictions on office-holding impinge on the freedom of candidates and, more importantly, on the freedom of the People to choose their governors: a theme which runs not only back to 1787 and the Framers at Philadelphia, but back to 1776 itself. The People’s freedom to elect their governors should not be limited by common law decision-making or abstract policy-making concerns unanchored to the constitutional text. As Congress has no textually-granted power to exclude members-elect based on corruption, Powell’s exclusion was wrongful.

What about dual-office holding? Does the Constitution speak to that issue? The only constitutional provision which might prevent Vance from being a Senate member and Vice President at the same time is the Incompatibility Clause, which states: “[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office,” (emphasis added). It basically comes down to this: if the vice presidency is an “Office under the United States,” then Vance may not hold both positions at the same time. But if the vice presidency is not an “Office under the United States,” then neither the Senate nor the federal courts can prevent Vance from holding both positions concurrently.

Surprisingly, there are, in fact, several good grounds for believing that the vice presidency is not an “Office under the United States,” and therefore, that position is not subject to the strictures of the Incompatibility Clause.

First, where the unamended or original Constitution of 1788 imposes limits on the presidency and vice presidency, it generally does so expressly, as opposed to relying on the Constitution’s more general “officer of the United States”- or “Office under the United States”-language. For example, the Impeachment Clause states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” (emphasis added). In his celebrated Commentaries on the Constitution of the United States, Justice Joseph Story explained that if the President and Vice President were “Officers of the United States,” then “other” should have appeared between “all” and “civil.” Thus, Justice Story put forward the position that the President and Vice President are not “Officers of the United States.” For similar reasons, Story reasoned that the President and Vice President did not hold an “Office under the United States.” In reaching this latter result, Story specifically quoted the Constitution’s Incompatibility Clause—the clause which is the focus of our analysis.

Second, the consensus view for most of our history is that representatives and senators are not “Officers of the United States,” and they do not hold “Office[s] under the United States,” as used in the Impeachment Clause and Incompatibility Clause, respectively. When describing representatives and senators, the original Constitution consistently avoided using “office”-language (except for the presiding officers of each house of Congress). Similarly, although the original Constitution describes both the presidency and vice presidency as an “office” (unmodified), and, also, in one instance, it characterizes the Vice President as an officer of the Senate, still, it never describes the President or Vice President as an “officer of the United States” or as holding an “Office under the United States.” In other words, the Vice President is not described using the controlling “Office under the United States”-language used in the Incompatibility Clause.

Third, some commentators (albeit, not all) understood the Incompatibility Clause to be rooted in separation of powers concerns. In other words, its purpose was to keep legislators out of the other two branches. But it is not so obvious that the Vice President is in another branch. Historically, many, perhaps most, conceived of the Vice President as a legislative branch official. There is no constitutional text expressly precluding a House member from also sitting in the Senate, and then voting on every measure in both houses. Likewise, the Senate President pro tempore, who presides in the Senate in the absence of the Vice President, has always been elected from among the Senate’s members. Thus, it is hardly obvious why a Senate member should be precluded from holding the vice presidency and sitting as the presiding Senate officer.

It is true that many scholars have characterized the Incompatibility Clause as a separation of powers provision. Many but not all. Others have rejected that characterization, and they have, instead, characterized that clause as an anti-conflicts-of-interest or anti-bribery provision regarding office (particularly lucrative office) subject to presidential appointment, removal, or supervision. In other words, the clause’s purpose was to stymie corruption by preserving congressional members’ independence from presidential influence. As a general matter, vice presidents (as opposed to candidates for Vice President) are not chosen by presidents—at least not formally. Rather, the Vice President is chosen, in the first instance, by the People through federal electors, and if that method should fail to produce a result, then the Vice President is chosen by the Senate. Indeed, under the original unamended Constitution of 1788, the Vice President and President were not chosen in separate election proceedings. Rather, the two were chosen in a single vote of the electoral college, where the Vice President was the runner-up for the presidency, and so he was as likely as not to be a presidential aspirant and also a rival to the prevailing presidential candidate. Such a vice presidential office-holder was independent of the President and could not fairly be characterized as subject to presidential appointment, removal, or supervision. Thus, one might conclude that the better view of the Incompatibility Clause, the view rooted in the clause’s historical context and original public meaning, is that its purpose was to keep members of Congress from concurrently holding appointed or statutory offices, and not barring them from holding elected federal positions, such as the vice presidency.

Fourth, in 1792, the Senate—pursuant to express statutory authority—ordered Alexander Hamilton, the Secretary of the Treasury, to compile a list of “every person holding any civil office or employment under the United States” and their salaries. “[E]very” not “some;” “any” not “some.” Nine months later, in 1793, after much active research, Hamilton returned a ninety-page signed document, including officers in each of the three branches of the federal government. However, he omitted the President, Vice President, senators, and representatives. Why? An “office . . . under the United States” is an appointed position subject to direction or supervision in the ordinary course of business. It appears that Hamilton understood “Office . . . under the United States” to embrace only appointed or statutory officers, not holders of elected constitutionally-mandated apex federal positions. One may reasonably conclude that Hamilton omitted the Vice President from his list because the Vice President does not hold an “Office under the United States.”

In one way, the situation in 2024 is somewhat different from 2012. During former President Trump’s term in office, three sets of plaintiffs, in three different federal circuits, sued then-President Trump for purported violations of Article I, Section 9, Clause 8—the Foreign Emoluments Clause. The Foreign Emoluments Clause provides: “[N]o Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The Incompatibility Clause’s “Office under the United States”-language is apparently co-extensive with the Foreign Emoluments Clause’s “[o]ffice . . . under” the United States-language.

How have the federal courts interpreted the Foreign Emoluments Clause and its “office”-language?

In Citizens for Responsibility and Ethics in Washington v. Trump, Judge George B. Daniels, in the United States District Court for the Southern District of New York, held that plaintiffs lacked Article III standing to sue President Trump for purported violations of the Foreign Emoluments Clause. As a result, the district court never had occasion to decide whether the Foreign Emoluments Clause applies to the presidency and the scope of the clause’s “office”-language. Judge Daniels was reversed on the standing issue by a divided panel of the Second Circuit. In a dissent from a denial of en banc review, Circuit Judge Menashi (joined by two other circuit judges) indicated that the applicability of the Foreign Emoluments Clause to the presidency was not settled—a conclusion the Congressional Research Service agreed with. The case went to the U.S. Supreme Court, but once President Trump’s term in office ended, the lawsuit was declared moot.

In District of Columbia and Maryland v. Trump, plaintiffs brought two Foreign Emoluments Clause-related claims against President Trump: an individual-capacity claim, and an official-capacity claim. The case was heard in the United States District Court for the District of Maryland by Judge Peter Jo Messitte. Judge Messitte issued two separate, bifurcated 2018 judgements—in the first, he ruled that plaintiffs had standing, and in the second, he determined that the Foreign Emoluments Clause and its “office”-language apply to the President. At that juncture, both the individual-capacity defendant and the official-capacity defendant sought interlocutory review of Judge Messitte’s judgments and discovery orders. A panel for the Fourth Circuit reversed the district court, and the panel held that plaintiffs lacked standing. The Fourth Circuit addressed the standing issue in two separate opinions: one addressing the official-capacity claim and the other addressing the individual-capacity claim. Subsequently, the en banc Fourth Circuit, dividing 9-to-6, reversed the panel—again issuing two separate decisions: one addressing the official-capacity claim and the other addressing the individual-capacity claim. In response to the en banc decision, the official-capacity defendant, represented by the United States Department of Justice, sought certiorari. Briefing on defendant’s petition for certiorari was completed in December 2020, but the official-capacity claim case was declared moot by the Supreme Court on January 25, 2021—once President Trump was out of office. Although plaintiffs, in district court proceedings, apparently for tactical reasons, sought to voluntarily dismiss, without prejudice, their individual-capacity claim, that case was declared moot and dismissed, and all of Judge Messitte’s prior district court decisions addressing the Foreign Emoluments Clause were vacated.

At this juncture, among the cases where a plaintiff brought a claim expressly grounded in the Constitution’s Foreign Emoluments Clause, Judge Messitte’s 2018 trial court decision was the only opinion squarely to hold that that clause and its “office”-language apply to the presidency, where these two related issues: [i] were fairly raised and contested (albeit, only by amici, and not by the of the parties), and [ii] were actually decided by the court. And it is only by implication that this district court’s holding would extend to the vice presidency. Moreover, Messitte’s opinion has not been affirmed on appellate review—indeed, his lower court judgments have all been vacated by higher courts, applying the Munsingwear doctrine, which vacates lower court judgments when the case becomes moot prior to the U.S. Supreme Court’s reaching a final, merits decision. (Although for different reasons, Judge Sullivan’s opinion touching on the Foreign Emoluments Clause was also vacated as moot.)

Where does that leave us? In the first instance, any decision to exclude Senator Vance from his Senate seat (should he choose not to resign from the Senate at around the time he would become Vice President) would be a decision for the United States Senate. It is true that in one 2018 federal district court opinion, which adjudicated “office . . . under the United States”-language in the Foreign Emoluments Clause, the trial court held that this constitutional language reached the presidency. But that opinion was subsequently vacated. Although a district court opinion may be persuasive, the Senate is certainly not bound by a lone, and now vacated, federal district court decision. Moreover, it is not clear that the Senate could declare Vance’s seat vacant and exclude him from his seat by a simple Senate majority, as it could if he were merely a member-elect. When the new Congress convenes in 2025, Senator Vance will already be a sitting senator—he was elected and qualified two years ago, with four years remaining on his six-year senate term. Thus, the Senate’s declaring Vance’s seat vacant and excluding him from his seat is likely to require a two-thirds vote, which as a practical matter will require substantial support from both political parties, including Vance’s own. U.S. Const. art. I, § 5, cl. 2.

In conclusion, if the legal materials are ambiguous, then a Senator/Vice President Vance ought to be allowed to hold both positions concurrently—should he choose to do so. Anything less impinges on the People’s freedom to choose their own governors. It is only when the constitutional text is clear that it is permitted to restrict the People’s electoral choices in the name of the Constitution. We should not confuse our current modern linguistic understanding of the Incompatibility Clause’s “Office under the United States”-language, with what that language meant to the American public in 1787–1789, and we should not confuse good politics and prudence with what is constitutionally compelled.

Seth Barrett Tillman is an Associate Professor, at Maynooth University School of Law and Criminology, Ireland / Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad, where he has taught since 2011. Tillman filed multiple amicus briefs in the Foreign Emoluments Clause cases brought against President Trump. Tillman took the position that the Foreign Emoluments Clause and its “office”-language do not reach the presidency. In the more recent Amendment XIV, Section 3 cases, seeking to disqualify former President Trump from the state election ballot, Tillman filed amicus briefs arguing that Section 3’s “officer of the United States”-language does not reach the presidency. That legal position was adopted by Judge Wallace, the Colorado state court trial judge, in Anderson v. Trump, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023). Wallace’s decision remains the law of the case. In this publication, the Author has borrowed freely from his prior 2012 and 2020 Jurist articles on the same subject.

Suggested citation: Seth Barrett Tillman, Senator and Vice President of the United States: Could J.D. Vance Hold Both Positions at the Same Time?, Jurist, July 25, 2024, 14:19. https://www.jurist.org/commentary/2024/07/senator-and-vice-president-of-the-united-states-can-j-d-vance-hold-both-positions-at-the-same-time