Steve Lubet (Faculty Lounge), suggests that the answer might be “yes”. This would allow for an example of a 50-50 tie between the Senate and the House. A 221-213 vote in either chamber might result in a confirmation. The total will then be 271-263. This approach would result in a Senate defeat of 40-60 combined with a win in the House by 230-205.
Here is the heart of his argument (moved text, as usual, marked with {/}):
Eugene Volokh offers a hypothetical question on the Volokh Conspiracy: What would happen if Kamala Harris resigned from the vice presidency? The Constitution covers such a situation:
Each time there is an empty office for the Vice President the President nominates a Vice President to take his place upon approval by the majority votes of both houses of Congress.
… [But]Eugene supposes that each chamber of the Senate must vote individually. Wouldn’t that be why the Constitution says “confirmation”? Each House of Congress”? The simple meaning of the words “both” and “each” is that they both refer to joint actions. However, “each”, in other words, can mean similar actions taking place separately. Chicago is where my brother, and I grew-up. Each of my cousins graduated from one college in the 1970s.
{A singular noun is “A majority vote”. This is one vote for each house of Congress, as it can be read plainly. Separate voting could have looked something like “majority vote” or “a majority of votes in each house”. The Article I, Sections 5, and 7 refer to multiple votes. The Twenty Fifth Amendment does not.}
Take a look at Article II Section 3. It discusses the president and the state, and makes a distinction between the convening of “both” and 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 met historically in joint sessions for the State of the Union speech. Yes Gerald Ford [and Nelson Rockefeller were]While the House meeting confirmed the Vice President separately from the Senate, it doesn’t necessarily mean that the sessions are constitutionally necessary. There are no formalities in any event. [have been only two]Confirmation of vice-presidential candidate[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.
Article V is a contradiction, and I’ll grant it. Article V uses “both” as a way to distinguish 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 gives the president power to call a joint session on extraordinary occasions. Without a vice-president, the 50-50 Senate would be without any way of electing a president protempore. There would also not be an officer to convene the session. Isn’t this an extraordinary occasion, given the fact that it never has happened before? Would it not be sufficient to allow the president convene a joint session of lawmakers? …
This is my view of the subject:
A constitutional amendment is one that’s made within the framework of an existing constitutional scheme. It generally requires the same basic practices as the current scheme. They can alter that scheme, but their purpose is not to replace certain practices. However, the presumption is, barring any contrary evidence, that they intend to follow a particular constitutional procedure, such as voting by both Houses of Congress, when they make reference to it.
According to my knowledge, Congress votes only on those matters that Congress is constitutionally required to vote on. The Houses vote independently when Congress votes. This is not surprising, as Senate is a separate chamber and has 1/4 of the House’s power. There are no deviations to this standard, which I believe is joint. Your presence I don’t think it is possible to establish a joint practice at ceremonial events. You can vote important and fundamental substantive matters. This practice is further consolidated by precedents such as the Ford and Rockefeller nominations, I think.
By the way, it is worth noting that the same question could arise regarding the presidential disability vote at section 4 of Twenty-Fifth Amendment. If there are differences between the President or Vice-President over whether the “President cannot discharge the powers and obligations 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.
This means that the President will prevail unless the House of Representatives or Senate find the President disabled. Steve suggested that this can be done by 2/3 votes of 535 members from both houses. Thus, a 40-60 vote for the finding of President disability could be overcome by a 317 118 vote favorably in the House.
Steve’s post is worth noting and responding to. Let us know what you think.