What Happens if the Vice President Steps Down?

Rumours have circulated that Harris, Vice President of the United States, may be resigning. I have no reason to credit the rumor; but it does raise a rarely-discussed question (which a reader e-mailed me about): What happens when a Vice-President resigns—or dies or is impeached, or for that matter leaves office to become President—and in particular what happens when there’s a 50-50 senate?

For much of our nation’s history, such circumstances were not provided for. As a consequence, the Vice Presidency was quite frequently vacant. This was mainly due to Vice-President John Calhoun becoming President. However, the Twenty-Fifth Amendment allows:

The President may appoint a Vice-President to fill the vacancy. This Vice President will be confirmed by both the Houses of Congress.

This was the way President Gerald Ford got to be Vice-President after Spiro Agne’s resignation. These two questions are obvious, especially since the Senate is split 50-50.

[1.]What if Senators tie? Would Vice-President Harris have the ability to break the tie and approve Harris’ replacement? My opinion is that no vote (or official nomination) can take place until then. There is an openingSo by definition, either

  1. If the Vice President is not in office at this time, there won’t be any vote.
  2. The Vice-President has resigned from office and can not break a tie.

[2.]Is the Senate’s President pro tempore able to break the tie? According to the Constitution, “The Senate shall chuse its other Officers and also a president pro tempore in the Absence or during which he shall exercise Office of President United States.” However, I do not believe this allows the President pro-tempore to cast both his own votes and those of the Vice president and count them towards “a majority”. A 50-50 vote does not constitute a majority when 100 senators and not the Vice President are participating in voting.

It is possible that there will not be a tie at 50-50 even if Vice-President quits. However, Nancy Pelosi (the Speaker) would take over the presidency if no Vice-President was present. Some argue that having the Speaker of Congress and the then President pro Tempore of Senate at the succession may be unconstitutional. However, even if this is true, Antony Blinken, the Secretary of State, would take over. It isn’t clear why Republicans on the Senate would choose these potential presidents over Vice President Biden.

However, I think Vice-President Biden might nominate someone the Republicans could not stand for. It is possible that Republicans will refuse to confirm the vice president because of his tie-breaking powers (no Vice President, no tie-breaker in votes for ordinary Senate matters on legislation). Both highly unlikely, I think, but stranger things have happened ….

Again, I want to stress the fact that this is constitutional lawyer fun. I don’t believe that Vice President has plans to resign.