Earlier in the day, I posted and then deleted a piece about the prospect of one of the Vice Presidential candidates retaining his seat in the Senate while serving as VP. The musing came about because I thought the winning presidential candidate would be foolish to cede a Senate seat in a tightly-divided Senate, and in the rush of things I forgot about the Incompatibility Clause, Art. I, sec 6. My bad.
But then I read a piece by a fellow named Seth Tillman, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1099355, in which he argues (in a nicely-researched piece that I nevertheless find unpersuasive) that the Incompatibility Clause does not bar the President (and presumably the Vice President) from serving as a senator.
So now, putting aside the question of what the correct answer is, let's muse about what might happen if, say, Joe Biden were elected Vice President and then showed up on January 3 or January 21 to run the Senate, preside over the Foreign Relations Committee, and cast two votes (one as a senator and one as a tie-breaker) from time to time.
I haven't parsed Tillman's article in detail, but part of its argument seems to echo the position taken a little while back by Cheney as to the Vice Presidency not being a part of the executive branch. And consider the mechanics of the dispute, if it were to arise. Senator Biden would be sworn in for a new term on January 3; he would purport to take the oath of office as VP on January 20. Is he simply ineligible to take the oath, leaving the office vacant? Does he take the oath, occupy the office, wait for the Supreme Court to remove him? Or is it the Senate that decides whether he is qualified under Art I, sec 5, so that if the requisite majority does not vote to expel him, there is no further review? (Remember, Powell v McCormack reviewed an improper expulsion, not an improper retention.)
Posted by Craig J. Albert