In 2012, Representative Paul Ryan (Wisconsin) ran for Vice President, as Governor Mitt Romney’s Republican 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. It now appears that Senator Kamala Harris will be sworn in as Vice President on January 20, 2021. The legal issues involving dual-office holding in 2012 and 2021 are largely the same.
If Senator Kamala Harris is inaugurated as Vice President, can she 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 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 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, will not do.
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 actors 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 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? The only constitutional provision which might prevent Kamala Harris 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 Harris 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 Harris 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 not subject to the strictures of the Incompatibility Clause.
First, when the Constitution imposes limits on the presidency and vice presidency, it generally does so expressly, as opposed to relying on 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, Story concluded 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 cited the Constitution’s Incompatibility Clause.
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, 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, but 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.
Alternatively, many scholars have characterized the Incompatibility Clause, not as a separation of powers provision, but 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 members’ independence from presidential influence. As a general matter, vice presidents 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 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 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 meaning, is that its purpose was to keep members of Congress from concurrently holding appointed or statutory offices, and not 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 or 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 2021 is somewhat different from 2012. For the past four years, three sets of plaintiffs, in three different federal circuits, have sued 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 agrees with. Briefing on defendant’s petition for certiorari is now ongoing, but it is likely the entire case will be declared moot once President Trump is out of office.
In Blumenthal v. Trump, Judge Emmet G. Sullivan, in the United States District Court for the District of Columbia, held, in two separate judgments, that plaintiffs, sitting House and Senate members, had standing and that the Foreign Emoluments Clause applies to the President. In a per curiam decision, the District of Columbia Circuit reversed the district court’s standing holding, and it also vacated as moot the district court’s merits holding involving the Foreign Emoluments Clause. Plaintiffs sought certiorari, which was denied.
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 held, in two separate judgements, that plaintiffs had standing, and 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 it 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 is now ongoing, but it is likely the case will be declared moot once President Trump is out of office. Although plaintiffs, in subsequent district court proceedings, have since sought to voluntarily dismiss, without prejudice, their individual-capacity claim, that claim remains before the Fourth Circuit, on direct review, where briefing is still ongoing.
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 is the only opinion to squarely hold that that clause and its “office”-language apply to the presidency, where these two related issues: were fairly raised (albeit, raised only by amici, and not by any of the parties); were actually decided by the court; and, were not subsequently reversed on appeal. And it is only by implication that this district court holding would extend to the vice presidency. More importantly, Messitte’s judgment has not been tested by direct appellate review, much less direct appellate review opining on this specific issue. In the first instance, any decision to exclude Senator Harris from her Senate seat (should she choose not to resign from the Senate at around the time she would become Vice President) would be up to the United States Senate. Although a district court opinion may be persuasive, the Senate is certainly not bound by a lone federal district court’s decision untested by Supreme Court review or, even, by any direct appellate review. Moreover, it is not clear that the Senate could declare Harris’ seat vacant and exclude her from her seat by a simple Senate majority, as it could if she were merely a member-elect. When the new Congress convenes in 2021, Senator Harris will already be a sitting senator—she was elected and qualified four years ago, with two years remaining on her six-year term. Thus, the Senate’s declaring Harris’ seat vacant and excluding her from her seat may require a two-thirds vote, which as a practical matter is likely to require substantial support from both political parties, including her own. U.S. Const. art. I, § 5, cl. 2.
In conclusion, if the legal materials are ambiguous, then a Senator/Vice President Harris ought to be allowed to hold both positions concurrently—should she 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, Lecturer, Maynooth University Department of Law. Roinn Dlí Ollscoil Mhá Nuad. Harvard Law School JD (2000), cum laude; University of Chicago BA (1984), with honors. 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. The reader can find links to Tillman’s briefs and to other filings and judicial decisions from the Foreign Emoluments Clause cases here.
Suggested citation: Seth Barrett Tillman, Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?, JURIST – Academic Commentary, November 30, 2020, https://www.jurist.org/commentary/2020/11/seth-barrett-tillman-kamala-harris-vp-senator/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
