The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Can a Vice-President Be Confirmed by a Majority Vote of Both Houses Put Together?


Steve Lubet (Faculty Lounge) suggests the answer may be yes, so that (say) an unbroken 50-50 tie in the Senate might be combined with a 221-213 vote in the House might yield a confirmation, since the result will be a 271-263 total. Indeed, under this approach a 40-60 defeat in the Senate combined with a 230-205 win in the House would yield a confirmation as well.

Here is the heart of his argument (moved text, as usual, marked with {/}), which responds to my earlier post:

Eugene Volokh offers a hypothetical question on the Volokh Conspiracy: What would happen if Kamala Harris resigned from the vice presidency? In the case of such a vacancy, the Constitution provides:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

… [But] Eugene is assuming that the House and Senate would have to vote separately. If so, wouldn't the Constitution say "confirmation by each House of Congress"? In plain meaning, the word "both" usually indicates joint action, while "each" can indicate similar actions occurring separately. My brother and I both grew up in Chicago. My cousins each graduated from their respective colleges in the 1970s.

{"A majority vote" is a singular noun. By plain reading, it describes one vote of both houses of Congress. The language for separate voting would have been something like "majority votes" or "a majority vote in each house." Article I, Sections 5 and 7, do refer to separate voting multiple times. The Twenty Fifth Amendment does not.}

If you don't believe me, take a look at Article II, Section 3, regarding the presidency and the state of the Union, which draws a distinction between convening "both" houses and convening them separately:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them….

Congress has historically met in joint session for the State of the Union address. Yes, Gerald Ford [and Nelson Rockefeller were] confirmed as vice president by the House and Senate meeting separately, but that doesn't mean the separate sessions were constitutionally required. In any case, there [have been only two] vice presidential confirmation[s] interpreting the Twenty-Fifth Amendment, but there have been 98 joint sessions—before "both Houses"—to receive the State of the Union address under Article II.

I will grant that Article V appears to the contrary, using "both" to describe separate votes:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution….

… The Ford and Rockefeller votes are precedents for one way to comply with the Twenty-Fifth Amendment, but that does not make it the only way. Article II specifically gives the president the power on "extraordinary occasions" to convene a joint session. In the absence of a vice president, a 50-50 senate would have no way to elect a president pro tempore, and there would therefore be no convening officer. Wouldn't that be a sufficiently "extraordinary occasion," given that it has never happened before, for the president to convene a joint session? …

Here's my sense of the matter:

Constitutional amendments are created in the context of an existing constitutional scheme, and generally presuppose the basic practices of that scheme. True, they can change that scheme; indeed their whole point is to change some practices. But the general presumption, absent some contrary evidence, is that when they refer to an existing constitutional procedure (such as voting by the Houses of Congress), they anticipate following that procedure.

As best I can tell, when Congress votes on the things that Congress must constitutionally vote on, the Houses vote separately. (This is unsurprising, since anything else would reduce Senate from a coequal chamber to one that has less than 1/4 the power of the House, since it is less than 1/4 the House's size.) I know of no departures from that practice, and joint presence on ceremonial occasions doesn't strike me as establishing a practice of joint voting on crucially important substantive matters. And the precedents set by the Ford and Rockefeller nominations further cement that practice, I think.

Note, by the way, that the same question would arise as to the presidential disability vote in section 4 of the Twenty-Fifth Amendment; if there's disagreement between the President and the Vice-President about whether "the President is unable to discharge the powers and duties of his office,"

If the Congress … determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

I think this means the President prevails unless 2/3 of the House of Representatives and 2/3 of the Senate finds that the President is disabled. Steve's suggestion is that this could be accomplished by a 2/3 vote of the 535 members of both houses put together, so that a 40-60 Senate vote against finding the President disabled could be swamped by a 317-118 vote in favor in the House.

In any event, I thought Steve's post was worth highlighting and responding to. What do you folks think?