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If Senator Harris Becomes Vice President She Would Indeed Have to Resign As Senator From California
Andrew Hyman

Contrary to Seth Barrett Tillman’s view, it seems to me that a VP Harris would have to vacate her current Senate seat.  The Twelfth Amendment says, “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”  So, if the President would have to resign his Senate seat, then so would the Vice-President.  

The Incompatibility Clause says at Article I, Section 6, Clause 2: “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  In my view, that plainly includes the President, who is the chief executive officer and the commanding officer of the armed forces.  I’ve looked at the particular writings of Alexander Hamilton that Seth partly relies upon, and am not persuaded to depart from the plain meaning.  Both the 12th Amendment and the 22nd Amendment explicitly refer to the “office of President.”  Also, Article II refers to “the Office of President of the United States.”  That office is under the United States, if not under the Executive Branch.  Any other conclusion runs afoul of plain English, into a tangle of technical terms of art that were not explained by any dictionary or treatise extant in the eighteenth century.  More than that, any other conclusion would create considerable tension with Section 3 of the Fourteenth Amendment, which puts “any office, civil or military, under the United States” off limits to those who betrayed their oaths to the Union; it would be absurd to think that the framers meant to make the presidency (but no lower offices) available to all of the betrayers.