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?

Comments

[Brett Bellmore]

This is such a stretch you should probably market it as a superior replacement for Lycra.

[Sarcastr0]

Where's the rub, from a purely textualist point of view?

[Dilan Esper]

How about, that "a majority vote of both Houses of Congress" is a term of art? You don't separate terms of art.

It's like the people who argue "Arabs can't be anti-Semites because they are Semites". "Anti-semite" is a term of art with a meaning, not something to be divided up and parsed.

[Eugene Volokh]

Sarcastr0: I don't know of any textualists who would ignore the background constitutional practices against which a provision was enacted, and in particular the way the basic practices of the institutions to which the provision delegates the decision.

[Sarcastr0]

Plenty in this commentariat would. But I take your point - it is in fact the same one I was trying to make!

[Kazinski]

History and practice.

Congress has been proposing constitutional amendments since the founding, each house voting separately. And that provision uses the same "both Houses" verbiage.

Besides we know the court wouldn't infringe on Congress' interpretation of its own internal deliberations conform to the constitution.

It's a frivolous argument.

[Don Nico]

There is no precedent for both chambers to vote in a single session.
Before anyone argues that the votes can be combined, they should offered the explicit lines in the rules of each chamber.

[Sebastian Cremmington]

Republicans stabbed Nixon in the back because they had their guy as VP after the Agnew scandal. The only impeachment that was truly serious was possible because Andrew Johnson didn’t have a VP and Congress could have made their guy president. So these last two impeachments were dumb because Gore and Pence would have been worse from the perspective of the opposing party. It’s also why George W Bush was never impeached even though he stole an election and lied us into a war and tortured detainees and slaughtered Muslim innocents while being the worst president in history—Cheney was much much worse from a Democratic perspective.

[Don Nico]

"while being the worst president in history"
C'mon SC. There is no way that you can sustain that argument.
Moreover, Bush did not steal the election.
Second, you have no evidence that Bush lied about WMD; he was dead wrong, to be sure. But a deliberate lie, you need to produce hard evidence.
As for taking a huge toll on the respect for the US worldwide, no one has done more damage than Mr Trump, who continues to act to lower the good sense of anyone who voted for him even once.

[bernard11]

Second, you have no evidence that Bush lied about WMD; he was dead wrong, to be sure. But a deliberate lie, you need to produce hard evidence.

No evidence that he deliberately lied, but given the resources at his command, and that of Colin Powell, it's fair to say he was grossly negligent in verifying the basis of his claims.

I think he was lied to by his subordinates, and I think he wasn't inclined to be too curious about the matter.

[Don Nico]

"it's fair to say he was grossly negligent in verifying the basis of his claims"
I can buy that. As for grossly, well, people often see what they want to see. Just look at SC's post.
Having said that, I found that Bush's Iraq adventure was the worst mistake made by a President in my lifetime.

[grb]

Don Nico : it's fair to say he was grossly negligent in verifying the basis of his claims" I can buy that.

That's still way too generous. Bush sold the war (and WMDs) the same way Madison Avenue sells toothpaste. In either case, facts and truth are irrelevant. A lie is just as good as truth if it sells the presentation - sometimes even better.

Here's my attempt to be generous to GWB: Yes, he knew his case for WMDs was total bullshit, but assumed the U.S. would find enough after Saddam was deposed to justify his huckster con. Bush was surprised as anyone to discover there was no there there.

[grb]

Don Nico : "no one has done more damage than Mr Trump"

Though I applaud your sentiments, two objections :

1. Arguably, Trump's stupidity, incompetence, & indifference to anything beyond surface effect made his time less consequentially damaging than Bush's (though Trump's attempt to subvert a national election makes a strong case for him).

2. Neither can hold Buchanan's beer.....

[John F. Carr]

"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."

They would have a way. If Senators choose instead to spend their time bickering that is their prerogative.

[rsteinmetz]

They could come up with a compromise candidate both parties could live with as a presiding officer, I'm sure there must be someone in the Senate popular and uncontroversial enough. Unlike the Vice President the President pre tempore doesn't really have that much real power.

[cmcc_aus]

EV writes "Constitutional amendments are created in the context of an existing constitutional scheme, and generally presuppose the basic practices of that scheme," and I believe this is the core.

I'm a linguist (and not a lawyer), and ordinary words are usually used to construct ordinary meaning. Just because the word 'both' is used, it doesn't have to mean, 'both working together and voting together.' Indeed as EV says, we should generally presuppose we are still within the basic framework, unless the words clearly indicate otherwise. If the intent were otherwise, it should read "by a majority vote of the two Houses together" or something like that.

Congress occasionaly is called into joint sessions for purposes other than the State of the Union. For example, didn't FDR call a joint session after Pearl Harder, after which the two houses voteed separately on a "Joint Declaration" of War?

We are straining mightily to find a contorted reading. The language used is ordinary enough. It should be read in an ordinary manner.

[Krychek_2]

I can't possibly be the only person to whom the thought has occurred that a whole lot of issues wouldn't be issues if both parties cared more about the country than they do about their own partisan interests. If the vice presidency is vacant and the president nominates somebody reasonably competent, well, maybe ensuring a competent line of succession should mean more than which side it will advantage.

[Eugene Volokh]

Krychek_2: I appreciate that some politicians may care more about their own interests, or the interests of their fellow partisans, than about the country. They are, after all, humans, and caring more about oneself than about others (even others whom you were elected to care about), or more about your people than about the other side, is a facet of human nature.

But it's also human nature to assume that things that are good for your party are good for the country (even if on dispassionate reflection that turns out not to be so). After all, your party represents all that is right and good, and the other side is stupid, evil, or both. So I suspect that many politicians in both parties do the partisan things they do while sincerely believing that they are in the interests of the country.

[Krychek_2]

Eugene, I think that's true to a certain extent, but I also think there's an outer limit to it. We've had crumbling infrastructure for years because one side was unwilling for the other side to score a political victory; they'd rather have decrepit bridges. We're lucky a major bridge on a major interstate somewhere hasn't collapsed, killing hundreds of people and shutting down a major traffic artery for months. How is that good for the country?

Likewise, spend two minutes thinking through the potential disaster of having a vacant vice presidency if something then happens to Joe Biden. I personally like Nancy Pelosi but for a significant chunk of the country a Pelosi presidency would be a lightning rod that would be nothing but two years of hostilities with nothing getting done. Ditto 80 year old Patrick Leahy. Is refusing to confirm anyone Biden sent over just for partisan advantage really good for the country? I don't think so.

And I get that the partisans subjectively believe that what they're doing is good for the country because it saves the country from the other guys being in power. It's a variation of destroying the village in order to save it. But they're wrong.

[Rev. Arthur L. Kirkland]

One side has been getting waxed in the American culture war for more than a half-century and has become disaffected and desperate, even delusional. It dislikes modern America to the point of being alienated and nihilistic, regarding cooperation and moderates as objectionable. It is reflexively lashing out against the winners, seeking any short-term advantage that can delay being overrun by a demographic wave and by modernity.

It apparently provides some short-term laughs and satisfaction. Over time, however, it will cost them dearly, having lost the respect of those who will establish the rules.

[Armchair Lawyer]

Sigh,

Let's address a few things.

1) "We've had crumbling infrastructure for years because one side was unwilling for the other side to score a political victory"

We've had "crumbling infrastructure" since the 1980's. The reality is though, it's not that bad. A recent survey put US infrastructure at 13th of 141 countries. Is some of it old? Sure...a lot was put up in the Depression and post WWII. But it's not "crumbling" anymore than the rest of the world.
And we've passed infrastructure bills before. We did it in the Bush administration. We did it in the Obama administration. And we did it in the Biden administration. And Trump pushed for infrastructure during his administration (The highway bill didn't get done there....if I wanted to be snarky I could say Congress had other "priorities"). And you have the continuous highway fund infrastructure.

And infrastructure sounds good too. Who is against bridges and highways? (Besides the people who don't want a new loud highway or the eco-community). So, let's throw other stuff in there that might not pass on it's own. Let's throw in free bus rides for seniors. And subsidized high speed access to the internet. And electric buses. And electric charging stations. And...and... And pretty soon you have an infrastructure bill that only has 10% of the funding for actual roads and bridges. That's the stripped down bill too, what they really wanted was 3 times the cost with only 3% of the funding for roads and bridges.

But if you oppose such an infrastructure bill, where only 3% of the funding is for actual roads and bridges, you're "partisan"....

[Alpheus W Drinkwater]

Sigh. You should really take a trip to Europe or Japan and check out their internet and wifi access, and how much better than ours it is. And it's interesting how conservatives disdain comparisons with "the rest of the world" until it suits some argument they want to make, like being against an infrastructure bill while there is a Democrat in the White House.

[Toranth]

Have you ever been to Hokkaido or Aomori? Both in Japan, and the US has better and cheaper internet almost everywhere than those prefectures, including their similarly-sized and -located cities.

And I think your expectations of Europe as off as well. For example, NPR: Berlin Is A Tech Hub, So Why Are Germany's Internet Speeds So Slow?

[Don Nico]

That is why Manchin is a credible compromise.

[Krayt]

Rats, I flagged someone. Sorry. If only the unflag button weren't patented and the author demanding $50,000,000 to use it.

Anyway, the Constitution is supposed to be designed to stop surrilous, tricky power grabs. This is that. Why? A vote in each house carries different weight by design. You are adding apples to oranges.

Do what everyone does and nominate someone who can pass both houses.

We are about reconciliation after disruption. Until we aren't. We are about president for all the people. Until we aren't.

[ReaderY]

Disagree. The Constitution lrivides one way and one way only to confirm a Presidential nominee, by a majority vote in the Senate.

If a majority in the Senate does not agree, then as in every other such case, the President’s options include negotiate with the Senate for a candidate acceptable to a majority, or leave the position open. Will leave the question open whether the ordinary third option, a recess appointment would be constitutional in the case of a Vice President.

There is simply no reason why the power the Constitution gives to the Senate should be bypassed in this case.

The Constitution knows know concept of pary. It happens to be that 50 state representatives agree with the President and 50 don’t

The Constitution has permitted Congress to provide for a further chain of succession in the event the office of Vice President is vacant, and Congress has done so by statute. That’s all there is to it. If the office of Vice President remains vacant due to an impasse between the President and the Senate, then if something happens to the President, the statutory further chain of succession comes into play.

In the meanwhile, as the Constitution provides, the designated President Pro Tempore of the Senate presides over the Senate in the Vice President’s absence.

That’s all there is to it.

No fuss, no muss.

Whether members of the Senate will be able to negotiate or put aside their differences for the benefit of governing the country is solely the business of the members of the Senate. It is nobody else’s business.

Neither the constitution nor the courts are nannies empowered to babysit the Senate. Nor can they substitute for it if it doesn’t want to do its job. If its members prefer to spend their time sucking on baby bottles and arguing with each other to attending to the nation’s business, the constitution provides for no all-powerful magic genie able to do their job for them.

Indeed, it is part of the very purpose of the Constitution to prevent the creation of such baby-sitting nanny magic genies. Once conjured into being, they have a habit of sticking around. The spell to make them disappear is a lot harder than the spell to summon them. And while they may appear to be your servant when you summon them, they tend not to stay that way once they come upon the scene.

[MatthewSlyfield]

"There is simply no reason why the power the Constitution gives to the Senate should be bypassed in this case."

There's a very good reason. It's called the 25th amendment.

25th Amendment text

25A Section 2

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.

[arch1]

In the two succession-related scenarios Eugene mentions, if the authors had intended a nonstandard two-vote approach, they could easily have made this clear in the wording. As the current discussion demonstrates (notwithstanding the singular "vote"), they didn't - so, they didn't.

Eugene, near the end: "40-60 *Senate* vote" would be clearer.

[arch1]

Oops, I meant "nonstandard *single*-vote approach"

[Eugene Volokh]

Good point, thanks -- added "Senate."

[Sidney r finkel]

Talking about these things is fun, interesting, informative and entertaining, but given the major constitutional issue that America is involved in, namely the efforts by the prior administration to destroy faith in the democratic process of voting shouldn't Prof Volokh uses his valuable but limited resources to focus on the current threats to freedom and democracy?

Just saying . . .

[Rev. Arthur L. Kirkland]

Prof. Volokh chooses his targets and spots with care. This pleases many movement conservatives . . . and has cost him the respect of the American mainstream.

[Don Nico]

Sidney,
Lighten up. Nothing wrong with thinking about fanciful hypotheticals.

[Kazinski]

It's not a fanciful hypothetical, at Biden's age and health there is probably at least a 25% chance he won't make it thru the 3 years and 2 months remaining in his term, and I'd put the odds higher.

[Bob from Ohio]

Is this International Legal Stupid Day?

Another dumb, dumb argument, there is zero, zip, nada in the Constitution about aggregating votes.

A joint session oversees the electoral vote count but that's it. No winner in that count, the decision is not left to the same joint session.

[dwb68]

I dont think its as obvious as you. The President and VP are elected based on a majority of the electoral college, which is the same number as house+senate (538). So its natural to have a single combined vote. What makes it feel unatural is that legislation works differently.

[Bob from Ohio]

"same number as house+senate (538)"

house + senate is 535

[dwb68]

right.

[Rev. Arthur L. Kirkland]

The Twenty-Third Amendment currently adds three electors from the District of Columbia to the 100 associated with the Senate and the 435 associated with the House of Representatives.

That generates an Electoral College of 538 electors.

[KeithK]

This is just silly. I appreciate the creativity of it. But that's just not a serious interpretation of the Constitution. If a president and one house of Congress tried to impose their will on the other house like that it would precipitate a massive constitutional crisis.

[Ben of Houston]

I would also add that this is an absurd enough interpretation that trying to implement it would cause many people to declare a revolution, possibly a coup.

It's so brazenly obvious to a small child that that is not what it means, and the concept (adding senate and house together) has to my knowledge never been done in the history of America.

[ah....Clem]

My take is that the language is ambiguous and could be read either way. However, we have two precedents for separate votes and the 25th was passed recently enough that the people who drafted it were around to object when Ford and Rockefeller were confirmed and as far as I know no one did.

Now, I'm not a stickler for original intent or a textualist, but it seems to me that reading it as requiring a single vote in a joint session is a stretch. That said, I think there's a plausible argument that it *allows* a single vote in a joint session and if the two houses did it that way (good luck with that) I doubt the courts would overturn it.

[Don Nico]

Almost certainly, such a joint vote requires changing the rules of both chambers. That is not happening if the Senate is 50-50

[Mark Leen]

"In the absence of a vice president, a 50-50 senate would have no way to elect a president pro tempore" assumes no compromise is possible.

[Krayt]

We value operating for all the people. Until we don't.

[dwb68]

The Prez and VP are confirmed by a majority of the electoral college, and coincidentally that would be the equivalent of the house and senate convening together in one single vote - if each congress critter was also a representative of the electoral college. So, a majority of 538.

The real question though is, what did people think that they were agreeing to when they wrote it. My guess is that they assumed two votes, one each in the house and senate, because that is the norm for legislation.

[Ben of Houston]

Good point. In the one instance where it would make sense for the two houses to vote together (given the proportions), there is an entire separate body made for this express purpose.

[Bob from Ohio]

"So, a majority of 538'

Only 535 in Congress. Electoral college has 3 extra due to DC.

[Don Nico]

The EC is a standing in for the States. It has no bearing on this question

[dwb68]

Is the EC it a stand in for the states? I am not sure thats true. In the early days, Senators were not directly elected, so Senators were direct stand ins for states. Then we have the house, which is (and was) directly elected.

The EC is a hybrid weighting scheme which gives small states a minimum 3 votes regardless of population.

The EC has bearing on the question, because the weighting scheme of the EC suggests a joint vote - a combined vote of the House and Senate.

[Alpheus W Drinkwater]

Why is that the real question? It's actually a ridiculous question. The ONLY question is what does the amendment actually say. And while I think there is some interpretational wiggle room, I also think Prof. Volokh's take is reasonable and correct. But Lubet's interpretation isn't outside the realm of possibility.

[Don Nico]

"But Lubet's interpretation isn't outside the realm of possibility."
But it would have to be agreed to by both chambers under their existing rules.
As I wrote above,"Show us the exact words in the relevant rules of each chamber."

[Alpheus W Drinkwater]

If the correct interpretation is that both chambers must vote together as one, that would override any house or senate rules.

[eyeroller]

I think it must be a slow news day in the law world.

[Greg J]

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….

Yep, he may "convene both Houses" to address them at the same time.

but they always vote independently.

The claim is stupidity on stilts.

Oh, BTW, what is NOT stupidity on stilts is that the jury came back and found Kyle not guilty on all charges.

I expect that WI Democrat Gov Tony Evers is going to have the WI National Guard in Kenosha in full force this weekend, ready to shut down any riots. For two reasons:
1: He's going to try to get re-elected next year
2: He doesn't want the Democrat footsoldiers who will be there to burn the town down, to get shot by the Rittenhouse Replacements there to protect the town from a policing failure.

We'll see

[Pooneil]

Wouldn't the Senate have to agree to the joint session to hold this vote? With a 50/50 Senate and no VP to break the tie, how would you get that? If you could get the majority when the outcome was certain to be a Democratic majority vote, would the joint session even be needed? Wouldn't the Senate just vote on it's own to achieve the same result?

[Rev. Arthur L. Kirkland]

I'm not convinced by the 'single vote' argument, at least not so far; at first consideration, it seems to resemble one of those Blackman-Tillman specials.

Not nearly as bad as an Eastman product, though.

[Rev. Arthur L. Kirkland]

Speaking of that deluded jerk John Eastman, here's a blast from the past:

Prof. John Eastman for California Attorney General
by Eugene Volokh on April 29, 2010 1:13 pm
I just contributed to Prof. John Eastman’s campaign for California Attorney General, and I urge others to do the same. John is extremely smart and accomplished — he has a Ph.D. in government, he clerked for Justice Clarence Thomas, he has written or cowritten over 20 law review articles, and he’s a law professor and law school dean. And he’s a solid and thoughtful conservative, who I think would make an excellent Attorney General. There are things I disagree with him on, of course, but that’s inevitable with any candidate; on balance, I’m sure he would do a first-rate job.

[Eric VonSalzen]

When I was practicing law I was a stickler for grammar where sloppy wording could lead to ambiguity. If Congress had asked me, I would never have allowed that "both" language. But I 've known a couple of Senators (retired when I knew them), good, honest gentlemen -- but they would NEVER have tolerated a scheme that undermined the Senate's equality with the House. I'm pretty sure the ones I knew were typical in that regard. As far as I am concerned, Prof. V wins this one hands down over the grammarians.

[Commenter_XY]

You know what? I am glad that someone tried out a new legal interpretation, and it is getting debated and discussed. That is what VC is for, ostensibly. Thanks for putting this forward, Professor Volokh. Please keep doing that.

On the question at hand - confirmation of a VP...I am in the 'separate vote in each body needed to confirm a VP' camp. You can also put me down in the 'you vote to confirm who the POTUS chooses for VP unless there is something so obviously and stupidly disqualifying that they cannot serve as POTUS' camp as well. The POTUS gets to pick his team. You need a really, really good reason to deny him the person he wants as VP. Not liking that person, or disagreement with ideological orientation is not a good enough reason to deny the POTUS his choice, IMO.

[Alpheus W Drinkwater]

I think Prof. Volokh's point about this interpretation making the Senate an unequal chamber clinches the win. If the amendment meant to do this, it would would make that explicitly clear.

[jdgalt1]

I see no reason why Harris couldn't write a letter of resignation to be effective on some specified future date, or even "to be effective when a new Vice President has been selected and confirmed" -- thus allowing her to break a tie in the Senate on confirmation of her successor.

[Don Nico]

Doesn't work. The moment Old White Joe dies, she is POTUS and cannot resign as VP as she may not how two offices simultaneously.

[Eric VonSalzen]

Damn straight Don! That's lawyering brother.

[Don Nico]

Thank you Eric.

[Cal Cetín]

"Congress has historically met in joint session for the State of the Union address."

OK, but that's a ritual occasion, as Prof. V. says, and it's not required by the constitutional provision that the Pres "shall from time to time give to the Congress Information of the State of the Union."

According to Wikipedia, "In 1801, Thomas Jefferson discontinued the practice of delivering the address in person, regarding it as too monarchical (similar to the Speech from the Throne). Instead, the address was written and then sent to Congress to be read by a clerk until 1913 when Woodrow Wilson re-established the practice despite some initial controversy, and an in-person address to Congress has been delivered nearly every year since."

So there's all sorts of ways to convey information about the state of the Union.

They could probably deliver it by carrier pigeon, or have a butler deliver it under a silver platter. Presidents can use their creativity.

[Cal Cetín]

Under the Constitution, the only time Congress can have a joint vote is if they legalize marijuana.

[J555]

These sort of stupid word games are why people detest lawyers.

"It all depends on what the meaning of 'is' is".

The Constitution never specifically states that a bill needs to have a majority of votes in either the House or Senate to became law.

"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States."

A great deal of the Constitution, like a great deal of law generally, was not spelled out to the nth degree with every single word being explained in an attached dictionary. The assumption of the people writing it was that the people reading it would be neither fools nor crooks. From the vantage point of the 21st century that looks like a naïve assumption on their part.

[The Turtle Dove]

Best case for the other view:

"But Congress may by a vote of two-thirds of each House, remove such disability."

And yet...

Dictionaries: "Majority vote" doesn't appear to have been considered much of noun at the time of the founding. A few scattered uses in the 19th century on Google Ngrams and Historical Hansards, mostly for a slightly different sense. So it's really more of vote(majority) than "majority vote".

Linguistically: The houses are voting, since the members of the houses exist in the sentence only b implication, and the majority of a House is a certain thing.

Historically: The Lords and the Commons never caucus together, they even vote separately on the question of how much they like all of the things that Queen just said when she dropped by for a quick cuppa.

Structurally: the assembled membership of Congress doesn't have any powers under the Federal Constitution, so there'd be no one to even take and record the vote (presumably shouting back and forth across the Rotunda).

As for the contrary example above, consider this from Jefferson's Rules:

For the Lords in their House have
power of judicature, the Commons in their
House have power of judicature, and both
Houses together have power of judicature; and
the book of the Clerk of the House of Commons
is a record, as is affirmed by act of Parl., 6 H.
8, c. 16; 4 Inst., 23, 24;

When the Houses are exercising a power commended to them jointly, the agent is still the Houses, not the members of the two Houses. Especially since "majority vote" is less of a noun than one might think, which makes the "vote of both houses" the agent of fiat, without the obligation of specifying an object for the fraction, as in the contrary example.

Mr. D.

[Sebastian Cremmington]

It is very simple—had Harris behaved ethically like Rafensberger did in GA in 2020 then Gore would have won Florida. Harris behaved unethically and refused to do her job because Bush had the initial lead and so her strategy was simply to run the clock out. So if you supported Trump’s recount requests then you should have supported Gore’s recount requests…or in the alternative if you think Gore’s recount requests were an attempt to steal the election then you should believe Trump attempted to steal the 2020 election by requesting recounts.

[Gasman]

No matter how the press tried to re-count the Florida vote, it kept coming back to the same answer, that Bush won.

The press didn't like the result of the machine count, where every ballot was treated identically (remember hanging chad, swinging door chad, and dimpled chad). So they subjected each paper ballot to a physical view, one subject to bias because the assessment of whether the vote was 'cast' for the candidate could have been affected by election judges or Associated Press journalists knowing whether that vote would lead to a D result or R result. Still could not produce a different outcome; Bush won.

[Ben of Houston]

But it does amuse me to see them bring this up again continuously, even while declaring that Trump's people refusal to accept the election without audits or recounts was an unprecedented evil.

[grb]

Gasman : No matter how the press tried to re-count the Florida vote, it kept coming back to the same answer, that Bush won.

Of course that's not remotely close to true. The press looked at multiple vote standards and Gore won many. Most significantly, there was one category of disputed votes that decidedly swung the election Gore's way: Overvotes

These are when the voter both marks and writes the same candidate's name on the ballot. Per the final standard of Florida constitutional law (the clear discernable intent of the voter), it should have been the easiest of all issue to resolve. A hearing was scheduled on the issue of overvotes the very day the SCOTUS intervened to install Bush in the Oval Office. If those votes had been counted, Gore won.

PS: I lived in Florida at the time. My vote was in a church across the street were I lived, and used the best of all voting system per my opinion: Paper ballots, read by optical scanners, then preserved as a record. The guy in front of me had his ballot rejected by the scanner as being improperly filled-out. He was allowed a redo & his vote counted. If all of Florida had voted that way, Gore would have won easily. It was Bush who needed dysfunctional voting systems, just as Trump needed lies, criminality and fantasy.

[Sebastian Cremmington]

Nope, Harris wouldn’t do her job in 2000–everything else you write is rationalization because you supported George Xi Bush and his slaughtering of Muslim babies and shipping jobs to China and you believe Bush is a hero for saying marriage is between a man with a pee pee and a woman with a wee wee. W, the president!

[Sebastian Cremmington]

Biden supported Trump’s recount requests unlike your Jesus Lover in 2000. And the definitive study found Gore would have won a constitutional recount. But you got your wish and to this day marriage is between one man with a pee pee and one woman with a wee wee.

[bernard11]

Not accurate, Ben.

There were several state recounts, under normal state procedures, in 2020.

Trump refused, and he and his cultists continue to refuse, to accept those.

Have they even accepted the comical Arizona "audit?"

[Sebastian Cremmington]

Detroit did great under Clinton (remember low oil prices) and manufacturing jobs didn’t decline after NAFTA…it was only after China in the WTO in December 2001 that we hemorrhaged jobs to China. Nobody could have done worse than Bush with respect to manufacturing jobs and the economy in general AND with respect invading countries to kill Muslims…nobody. Rationalize away rationalizer!

[Sebastian Cremmington]

So Biden should micromanage the recounts for Trump?? That’s weird.

[David Nieporent]

"Signature match verification recounts" is a gibberish phrase.

[Rev. Arthur L. Kirkland]

Profs. Adler and Post are insufficiently wingnutty for you?

Stick with the hardcore right-wingers, mad_kalak; it suits you.

[Don Nico]

SC,
If Mr Gore had requested a hand recount of the entire state, I might buy your claim, but no, William Daley, Gore's man would never do that. Get real, it was close; there were many uncertainties in the vote count with different counties using different rules,etc. You know the entire story.
One recount under the same rules and criteria over every precinct in the entire state. There is NO evidence that Mr Gore would have won that recount. Instead he wanted selective recounts in heavily D counties in which votes were counted by divining the "intention" of the voter. Let's face it. D officials screwed Gore with their butterfly ballot.
The rest of this post is nonsense.

[Don Nico]

"Biden supported Trump’s recount requests"
Who cares. Biden was trying to look like a sport because he knew that he had defeated Trump by a margin larger than any uncertainties in the tally.
As for you pee pee and we wee, it's irrelevant. Even BHO used to believe that in 2008 and 2012.