The Vice Presidential Term Clause

[The President] shall hold his Office during the Term of four Years, . . . and, together with the Vice President, chosen for the same Term. . . .

—Roy E. Brownell II

Introduction

The Constitution assigns the Vice President specific powers in the legislative branch. The officeholder serves as President of the Senate and can break tie votes. (See Essay No. 18.) In addition, the Constitution provides that the Vice President plays a key role in situations involving presidential inability. During the early Republic, the officeholder was generally limited to modest legislative branch functions, but during the twentieth century, the vice presidency became more of an executive branch post. Today, the modern officeholder undertakes tasks such as participating in Cabinet meetings, advising the President, traveling abroad on foreign policy assignments, and chairing executive branch task forces; his Senate role, meanwhile, is largely limited to presiding on ceremonial occasions and breaking ties.

History Before 1787

Colonial charters and early state constitutions likely helped inform the Framers’ handiwork regarding the vice presidency.¹ In this regard, the Massachusetts, South Carolina, and New York constitutions authorized election of their governors and lieutenant governors in the same fashion and for the same term, presaging similar ties that would exist between the President and Vice President.²

The Constitutional Convention

During the Constitutional Convention, the position of Vice President was created fairly late in the proceedings. On September 4, 1787, the Committee of Eleven, also known as the Committee on Postponed Parts, proposed that the President would serve for four years “and together with the Vice President, [be] chosen for the same term.”³ This language would remain unaltered throughout the rest of the Convention.

The Framers offered several rationales for creating the vice presidency. The position addressed two important matters by establishing a presidential successor and a presiding officer for the Senate with the power to break ties, although the creation of an entirely new position was not needed for either function.⁴ The main reason appears to have been that the office was essential to the presidential election mechanism.⁵ Under this system, the Constitution created electors, each of whom was granted two votes for President. Electors were also prohibited from casting both votes for candidates from their own state. This restriction prevented electors from voting only for home-state favorites. Instead, it was thought that the Electoral College system—coupled with the vice presidency—would promote presidential candidates with a national profile.⁶

A member of the Committee of Eleven, Hugh Williamson of North Carolina, noted the link between electoral procedures and the vice presidency, asserting that the Vice President “was not wanted” and “was introduced only for the sake of a valuable mode of election which required two to be chosen.”⁷ Under the original Constitution, the candidate with a majority of electoral votes would become President, and the candidate with the second most votes would become Vice President. The Twelfth Amendment would later require separate votes for each office. (See Essay No. 190.)

Vice Presidential Tenure

The Vice President’s four-year term under the Constitution helps ensure that the officeholder cannot be removed from office by the President. Thus, the former’s secure tenure partly underpins his legal independence, although in a practical sense, the President clearly holds the upper hand in the relationship.⁸ While the Vice President is expected to serve four years concurrently with the President, fate has often intervened. Eighteen of the nation’s fifty Vice Presidents never completed their terms: seven died in office, two resigned, and nine were elevated due to presidential vacancy.⁹ No Vice President’s tenure has been ended by impeachment and removal.

Evolution of the Vice Presidency

Both Vice President John Adams and his successor Thomas Jefferson viewed the office as a Senate position.¹⁰ In keeping with this view, the First Congress enacted a vice presidential oath requirement specifying the Vice President’s role as President of the Senate.¹¹ At the same time, early Congresses also treated the Vice President as an executive branch figure with respect to his mode of resignation (a letter to the Secretary of State) and wage (a salary rather than a per diem like for lawmakers of the day).¹² On occasion, President George Washington discussed executive branch business with Adams.¹³ The President also asked Adams to attend a Cabinet meeting in his absence, which would prove a rare occurrence for well over a century.¹⁴

Throughout the nineteenth century, Vice Presidents devoted the vast majority of their workday to generally mundane Senate tasks with fairly limited prospects for career advancement.¹⁵ As a result, a number of prominent political figures refused to be considered for the vice presidential nomination.¹⁶ During this period, as a sign of the vice presidency’s weak political standing, Presidents who were nominated for a second term were often paired with a different vice presidential candidate. This trend began with President Thomas Jefferson, whose Vice Presidents during his first and second terms were Aaron Burr and George Clinton, respectively.

Moreover, when nineteenth-century Vice Presidents succeeded to the presidency, their political parties declined to choose them as their presidential standard-bearers in the next election. This happened to John Tyler, Millard Fillmore, Andrew Johnson, and Chester Arthur.¹⁷ Not until Theodore Roosevelt in 1904 did a Vice President secure his party’s nomination for President after succeeding to office because of a presidential vacancy.

Toward the end of World War I, broad historical currents began to reshape the office. In 1918, President Woodrow Wilson left for the Versailles Peace Conference and asked Vice President Thomas Marshall to preside at Cabinet sessions.¹⁸ Wilson’s successor, President Warren Harding, requested that Vice President Calvin Coolidge join his Cabinet on a permanent basis.¹⁹ With a single exception (Charles Dawes, who refused then-President Coolidge’s invitation), all Vice Presidents since have attended Cabinet meetings.²⁰

Cabinet participation heralded a new era in which the vice presidency gradually drew away from the Senate and became more of an executive branch post.²¹ With the expansion of national governmental activity during the New Deal and World War II, Presidents concluded that their Vice Presidents could help them govern.²²

In the 1930s and 1940s, presidential and congressional assignments of executive branch tasks grew more frequent and came to be seen as the norm in part because the Constitution does not prohibit the President from delegating work to the Vice President. Indeed, the Vice Presidential Term Clause, which ties the Vice President to the President, tacitly supports the notion that the Vice President can play an active role within the executive branch.²³ By the 1950s, Vice Presidents were regularly traveling abroad on presidential business and heading governmental task forces and commissions. Reinforcing these mid-century trends in governance, presidential nominees increasingly began to choose vice presidential candidates, thereby helping ensure greater compatibility and loyalty between the two officeholders.²⁴ Two decades later, Vice President Walter Mondale, who served under President Jimmy Carter from 1977 to 1981, became a top presidential counselor and troubleshooter and the first officeholder to secure permanent office space within the West Wing, elevating the post to a true White House position.²⁵

During the joint session of Congress on January 6, 2021, Vice President Michael Pence demonstrated that an officeholder could still act independently from the chief executive when he repudiated President Donald Trump’s view that the Vice President had the constitutional authority to refuse to accept electoral votes from certain states.²⁶

Judicial Precedent

The constitutional development of the vice presidency has taken place largely without assistance from the judiciary. When litigation has directly implicated vice presidential constitutional power, the courts have typically declined to intervene, permitting the political branches to resolve matters.²⁷ As a result, constitutional amendments and changing political expectations and customs have largely driven interpretation of the office.²⁸ A rare exception to this rule occurred in 2023 when a federal district court concluded that some of Vice President Pence’s communications about his legislative-branch role leading up to the January 6, 2021, electoral vote count were protected by the Speech or Debate Clause.²⁹

Open Questions

• Does the Vice President enjoy immunity from civil litigation resulting from the execution of his official responsibilities?³⁰
• Can an incumbent Vice President, who is also a candidate for reelection, preside over the Senate and break ties when the upper chamber is picking a Vice President during a contingent election pursuant to the Twelfth Amendment?³¹
• Is the Vice President permitted to serve as presiding officer when he is the subject of a Senate impeachment trial?³²
• What happens if a Vice President becomes de facto incapacitated?³³

1. John D. Feerick, From Failing Hands 23–38, 43 (1965). ↩︎
2. Mass. Const. of 1780, pt. 2, ch. 2, § 2, art. I; S.C. Const. of 1778, art. III; N.Y. Const. of 1777, art. XX; Jamin Soderstrom, Comment, Back to the Basics, 35 Pepp. L. Rev. 967, 986–87 (2008). ↩︎
3. 2 Farrand’s 493. ↩︎
4. Id. at 537; Federalist No. 68 (Hamilton); Joel K. Goldstein, The New Constitutional Vice Presidency, 30 Wake Forest L. Rev. 505, 511–13 (1995). ↩︎
5. Goldstein, The New Constitutional Vice Presidency, supra at 510–15. ↩︎
6. Id. ↩︎
7. 2 Farrand’s 537. ↩︎
8. Roy E. Brownell II, The Independence of the Vice Presidency, 17 N.Y.U. J. Leg. & Pub. Pol’y 297, 305–06 (2014). ↩︎
9. U.S. Senate, About the Vice President, https://perma.cc/8KCS-YZS4. ↩︎
10. Roy E. Brownell II, A Constitutional Chameleon, Part II, 24 Kan. J.L. & Pub. Pol’y 294, 297–314 (2015). ↩︎
11. 1 Stat. 23 (1789); Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 419 (2023). ↩︎
12. 1 Stat. 241 (1792); 1 Stat. 72 (1789). ↩︎
13. 8 The Works of John Adams 489–93, 496–500, 515 (Charles Francis Adams ed., 1853); Linda Dudik Guerrero, John Adams’ Vice-Presidency, 1789–1797, at 161–87 (1978) (Ph.D. dissertation, University of California, Santa Barbara). ↩︎
14. Letter from Thomas Jefferson to Benjamin Rush (Jan. 16, 1811), https://perma.cc/AZ6E-QQD4. ↩︎
15. Brownell, A Constitutional Chameleon, supra at 314–25; Joel K. Goldstein, Crossroads in Vice-Presidential History, in The Presidency: Facing Constitutional Crossroads 180–83 (Michael Nelson and Barbara A. Perry eds., 2021). ↩︎
16. Michael Nelson, Background Paper, in A Heartbeat Away: Report of the Twentieth Century Fund Task Force on the Vice Presidency 29–30 (1988). ↩︎
17. Goldstein, Crossroads, supra at 182–84. ↩︎
18. Marshall Heads Cabinet Session, N.Y. Times, Dec. 11, 1918, at 1. ↩︎
19. Harding Confers on the Campaign with Gen. Wood, N.Y. Times, July 11, 1920, at 1. ↩︎
20. Brownell, A Constitutional Chameleon, supra at 334–36. ↩︎
21. Arthur M. Schlesinger, Jr., The Cycles of American History 349 (1986). ↩︎
22. Joel K. Goldstein, The Modern American Vice Presidency 15–45, 139 (1982). ↩︎
23. Memorandum for the Vice President from Nicholas deB. Katzenbach, OLC, Re: Constitutionality of the Vice President’s Service as Chairman of the National Aeronautics and Space Council 1 (Apr. 18, 1961), https://perma.cc/32AU-7JFS; Joel K. Goldstein, The White House Vice Presidency 13 (2016). ↩︎
24. Goldstein, Crossroads, supra at 187. ↩︎
25. Goldstein, The White House Vice Presidency, supra at 36–104. ↩︎
26. Letter from Vice President Michael R. Pence to Members of Congress (Jan. 6, 2021), https://perma.cc/N2AU-XHFU. ↩︎
27. Gohmert v. Pence, 510 F. Supp.3d 435 (E.D. Texas, 2021); Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014). ↩︎
28. Goldstein, The New Constitutional Vice Presidency, supra at 526–40; Goldstein, The Modern American Vice Presidency, supra at 15–45, 134–84, 300–21. ↩︎
29. In re Grand Jury Subpoena, Case No. [Redacted], D.D.C. (Mar. 27, 2023), https://perma.cc/533L-7473. ↩︎
30. James D. Myers, Note, Bringing the Vice President into the Fold, 50 Bos. Coll. L. Rev. 897 (2009). ↩︎
31. Todd Garvey & Jack Maskell, Can the Vice President Elect Himself? CRS Legal Sidebar (Oct. 11, 2012), https://perma.cc/CF4G-NVRK. ↩︎
32. Joel K. Goldstein, Can the Vice President Preside at His Own Impeachment Trial?, 44 St. Louis U. L.J. 849 (2000). ↩︎
33. Roy E. Brownell II, Vice Presidential Inability, 48 Hofstra L. Rev. 291 (2019). ↩︎