At Jurist, Seth Barrett Tillman: Senator and Vice President of the United States: Could J.D. Vance Hold Both Positions at the Same Time? From the introduction:
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. …
Posted at 12:57 AM