Can Joe Biden Be Vice President and Senator at the Same Time?

            ABC News asks “Why Hasn’t Joe Biden Resigned His Senate Seat?”  Perhaps the answer is that Senator Biden, who is after all a law professor in his spare time, is familiar with this recent work of legal scholarship concluding that one can be President (or Vice-President) at the same time one holds a seat in the Senate (or House).  Specifically, Seth Barrett Tillman argues that the Incompatible Offices Clause (U.S. Const., art. I, § 7, cl. 2), which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office,” is inapplicable to the President or Vice-President because they do not hold offices “under the United States.”  Although Tillman’s argument is focused on the presidency, it would seem to allow Biden to remain a Senator while serving as Vice-President.   

            There are a number of very strong arguments against Tillman’s theory, of which unbroken historical practice is just one.  Professor Steven Calabresi lays out many of these arguments in a recent debate with Tillman.  One particular problem for a Vice President/Senator would be Article I, § 3, cl. 4, which provides that the “Vice President shall be President of the Senate, but shall have no Vote, unless they be equally divided.”  Does this mean that Vice President Biden would be unable to vote in his capacity as Senator Biden? 

            Nonetheless, perhaps Senator Biden wants to chew on this awhile before making a final decision on whether to give up his Senate seat.  After all, Senator Obama rushed into his resignation and look how much trouble that caused . . . .