What Does "Both Houses" Mean? [UPDATED][UPDATED][UPDATED]

Eugene Volokh offers a hypothetical question on the Volokh Conspiracy: What would happen if Kamala Harris resigned from the vice presidency? In the case of such a vacancy, the Constitution provides:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Eugene suggests that the 50-50 Senate would have no way of breaking ties, the VP having created a vacancy, and that Republicans could therefore block any replacement nominated by President Biden. They might not want to do that because a permanent vacancy would leave Nancy Pelosi second in line to the elderly Biden. Then again, Mitch McConnell might just want to thwart anything on Biden's agenda.

But wait a minute. Eugene is assuming that the House and Senate would have to vote separately. If so, wouldn't the Constitution say "confirmation by each House of Congress"? In plain meaning, the word "both" usually indicates joint action, while "each" can indicate similar actions occurring separately. My brother and I both grew up in Chicago. My cousins each graduated from their respective colleges in the 1970s.

If you don't believe me, take a look at Article II, Section 3, regarding the presidency and the state of the Union, which draws a distinction between convening "both" houses and convening them 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 has historically met in joint session for the State of the Union address. Yes, Gerald Ford was confirmed as vice president by the House and Senate meeting separately, but that doesn't mean the separate sessions were constitutionally required. In any case, there has been only one vice presidential confirmation 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.

I will grant that Article V appears to the contrary, using "both" to describe separate votes:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution. . . .

If Harris were actually to resign, which is obviously astonishingly unlikely, what would happen if Speaker Pelosi were to call a joint session of both houses of Congress? The vote in favor of Biden's nominee would pass by something like 275 - 265 (or maybe slightly more if some of the pro-impeachment Republicans vote with the Democrats). Would that be sufficient to confirm a new vice president? Would the vote be reviewable by the courts? (Note: if partisan gerrymandering is a non-justiciable political question, surely the confirmation of a vice president ought to be as well.)

One thing is certain. Eugene Volokh and I both think it is an interesting question.

UPDATE:  Sorry, I forgot about the Rockefeller confirmation. Same circumstances apply.

UPDATE: 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 specifically gives the president the power on "extraordinary occasions" to convene a joint session. In the absence of a vice president, a 50-50 senate would have no way to elect a president pro tempore, and there would therefore be no convening officer. Wouldn't that be a sufficiently "extraordinary occasion," given that it has never happened before, for the president to convene a joint session?

UPDATE: A further thought: The Constitution provides for presidential resignation but does not say how it is to be effected. President Nixon resigned by sending a letter to Secretary of State Henry Kissinger. Was that the only way he could have resigned? Must future resignations follow Nixon’s precedent, or could a president send the resignation to the chief justice or the speaker of the house, or announce it on Twitter? (Spiro Agnew also resigned by letter to Kissinger, but I don't think anyone would look to Agnew as a constitutional authority; I don’t know how John C. Calhoun resigned.)

UPDATE: Just to make sure everyone gets the point:  "A majority vote" is a singular noun. By plain reading, it describes one vote of both houses of Congress. The language for separate voting would have been something like "majority votes" or "a majority vote in each house." Article I, Sections 5 and 7, do refer to separate voting multiple times. The Twenty Fifth Amendment does not.

Comments

[PaulB]

We have a precedent on this matter, the confirmation of Gerald Ford as Vice President. At that time, Congress interpreted the constitutional language as holding separate votes.

[PaulB]

apologies, I missed your mention of the Ford vote. I do think it would be wrong to change it in order to force a confirmation but then, I believe it would be wrong to withhold a vote on this office for purely partisan reasons. On the other hand, I have no problem withholding a vote on a Supreme Court nominee late in a president's term as McConnell did in 2020 (nine months before Obama's term ended) or as Schumer said he would, in a July 2007 speech to the ACS, eighteen months before bush's term ended.

[Steve L.]

The Ford vote is a pretty weak precedent. The vote totals were overwhelming, so there was no need to consider whether the procedure was the right one. It would have been an extreme super-majority either way. In any case (1) the Ford procedure is not binding on subsequent congresses; and (2) the validity of a vote in joint session would likely be non-justiciable.

[Steve L.]

UPDATE:  Sorry, I forgot about the Rockefeller confirmation. Same circumstances apply.

[anon]

The contention is a bit dubious that "both" means "joint"

confirmation by a majority vote of both [of the] Houses of Congress

the "Houses of Congress" = the House and the Senate

confirmation by a majority vote of both [the House and the Senate]

You contend it means:

confirmation by a majority vote of both of the Houses of Congress in joint session

[Dghf]

I think it is difficult to argue that a joint vote is required because jointly the two chambers do not vote on anything at all.

[anon]

Given that he obtained the majority vote of both swing states, he won.

That must mean the two states voted as one?

[Eric Bulloch]

You think this one is tough. Try this?

Did a state have a right voluntarily to withdraw from the Union prior to the Civil War? Of course, this issue was decided by force of arms in the Civil War and confirmed by a Supreme Court opinion in 1869 but ante-bellum it was much debated.

[Michael L Rosin]

As Congress crafted the 25th amendment there were all sorts of proposals on how to fill a VP vacancy. (1) Have the last set of presidential electors convene to choose a VP. (2) Have elections to pick a new set of electors, just to pick a VP. (3) Frank Church even proposed having the President nominate between two and five VP candidates "by and with the advice and consent of the Senate" from which the House would immediately choose one by ballot. (1964/01/15, CR 814) No one suggested the votes of the two chambers ever be aggregated. (BTW, who would formulate the rules to count the aggregated vote?) If a 50-50 Senate split is resolved by the House vote, why not let a 49-51 Senate vote be overcome by the House vote? A tied Senate vote in the absence of a VP has always been understood to be a failed vote.
In 1866 Congress dealt with the problem of a bicameral legislature not agreeing on how to fill a vacancy. In this case it was a legislature failing to fill a US Senate seat. Per the Act of 1866/07/25, 14 Stat. 243, IF the two chambers could not agree, THEN they would meet in "joint assembly" and "proceed to choose by a viva voce vote of each member present a person for senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members of both houses being present and voting, shall be declared duly elected." If that failed they would meet again the next day, and the next, and the next.
When Congress intended a vote by joint ballot of a bocameral legislature, it said so.

[anon]

Michael

Yours seems to be the final answer.