The Vice President as Presiding Officer Clause

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

—Roy E. Brownell II

Introduction

The position of Vice President is something of a hybrid with its constitutional functions alternating between the executive and legislative branches depending on context.¹ The officeholder is elected along with the President for a four-year term and is first in the line of succession. But he also presides over the Senate, where he can cast tie-breaking votes. In modern times, Vice Presidents spend most of their workday focusing on executive branch tasks and political assignments with their appearances in the Senate typically limited to ceremonial functions or breaking tie votes.

History Before 1787

Several colonial charters and state constitutions included antecedents to the vice presidency.² The New York Constitution of 1777 seems to have been particularly influential.³ It stated that the “lieutenant governor shall, by virtue of his office, be president of the senate, and, upon an equal division, have a casting voice in their decisions, but not vote on any other occasion.” The officeholder also was to “exercise all the power and authority” of the governor in the event of an executive vacancy or absence.⁴

The Constitutional Convention

Alexander Hamilton appears to have been the first delegate at the Constitutional Convention to address executive succession.⁵ On June 18, 1787, Hamilton proposed as part of his plan that the President of the Senate serve as successor. “On the death[,] resignation or removal of the [national] Governour his authorities [are] to be exercised by the President of the Senate till a Successor be appointed.”⁶ Perhaps following Hamilton’s lead, the Committee of Detail also included the President of the Senate as its proposed successor on August 6, providing that “[i]n case of his removal . . . death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties. . . .”⁷ This prompted concern from delegates, including James Madison who believed that having a Senator as successor might lead to mischief in the upper chamber.

Matters involving succession were placed on hold until September 4, when the Committee of Eleven put forward its work, which included introduction of the vice presidency.⁸ The proposal required electors to vote for two candidates, including one from outside their home state.⁹ It was thought that this procedure would encourage the election of chief executives who would enjoy countrywide prominence.¹⁰ The candidate with a majority of electoral votes would become President, and the candidate with the second-highest total would become Vice President. (See Essay No. 94.) This mode of election was later changed by the Twelfth Amendment. (See Essay No. 190.)

To give officeholders some regular responsibility, the revised plan also proposed that the Vice President preside over the Senate except during presidential impeachment trials and “when he shall exercise the powers and duties of” the chief executive.¹¹ (See Essay Nos. 19 and 97.) The position was also granted the authority to break tie votes in the upper chamber.¹²

Later that month, the Committee on Style modified the Committee of Eleven’s handiwork, muddying the waters with respect to the Vice President’s status following a presidential vacancy or inability episode. This change would lend some support to the notion that the Vice President became chief executive under such circumstances instead of merely exercising the latter’s powers and duties. This position would complicate situations involving presidential incapacity. The delegates also did not include a means of providing a new Vice President if the office became vacant.¹³ These problems would later be remedied by the Twenty-Fifth Amendment.

The Ratification Debates

In Federalist No. 68, Alexander Hamilton offered three defenses of the office: (1) the Vice President’s tie-breaking power assured that the Senate would always reach a decision; (2) if a Senator were to serve as President of the Senate, he would only have a “contingent” tie-breaking vote and would no longer be able to cast his vote regularly, leaving his home state in most cases with only one voting Senator instead of two; and (3) it made sense for a Vice President to serve as a “substitute for the President,” analogizing the office to that of the lieutenant governor under the New York Constitution.

During the state ratification conventions, delegates focused attention on the office seeming to straddle the separation of powers.¹⁴ In this regard, George Mason expressed concern that “the legislative and executive are hereby mixed and incorporated together.”¹⁵

The First Congress

John Adams, the first Vice President, was confounded by his office. He stated to the first Senate, “I am possessed of two separate powers . . . . I am Vice-President. In this I am nothing, but I may be everything. But I am president also of the Senate.”¹⁶ To the upper chamber, he posed the question, “what shall I be?” Lawmakers were unable to offer much guidance. Reflecting the office’s ambiguity, some early statutes treated the position as part of the legislative branch, while others as part of the executive branch.¹⁷

The Vice President and the Senate

The Vice President is not a Senator. He is elected nationally, serves a four-year term, can be impeached, and can vote only when there is a tie. Nonetheless, in carrying out his duties in the upper chamber, the Vice President is part of the legislative branch and receives his salary from Senate funds.¹⁸ The Constitution seems to suggest that the Vice President is required to preside over the Senate, the text providing that the Vice President “shall be president of the Senate.” But for decades, officeholders have presided very little.¹⁹ In such cases, the Constitution empowers the Senate, in the Vice President’s absence, to select a “President pro tempore.”

After World War I, Presidents began to ask Vice Presidents to join Cabinet meetings on a regular basis.²⁰ Other executive branch delegations soon followed, and by the 1950s, the Vice President’s participation in the Senate had greatly diminished.²¹ In modern times, the Vice President typically appears in the upper chamber only on ceremonial occasions and to break ties. Most of his workday is usually devoted to executive branch tasks and political assignments.²²

There are two circumstances in which the Vice President cannot preside over the Senate. He may not do so while serving as acting President,²³ and the Chief Justice replaces the Vice President as presiding officer during presidential impeachment trials.²⁴ (See Essay Nos. 20, 207, and 214.)

The Vice President can make parliamentary rulings, which can be overruled by the Senate.²⁵ For instance, Vice President John Nance Garner made a series of pronouncements to the chamber in the 1930s. He formalized the custom whereby the Majority Leader would be recognized before all other Senators seeking to address the body. These statements, which went unchallenged by the Senate at the time, today undergird the Majority Leader’s principal formal power, which is to be recognized first and to propose the Senate schedule.²⁶

As a practical matter, the Parliamentarian has narrowed the presiding officer’s authority over Senate procedure. This nonpartisan position was created in 1935 and provides technical advice on rules and precedents that the Vice President rarely ignores.²⁷

In his Senate role, the Vice President is covered by the Speech or Debate Clause.²⁸ In 2023, a federal district court concluded that some of Vice President Mike Pence’s actions in the leadup to the January 6, 2021, electoral vote count, were protected by the provision.²⁹

Tie-Breaking Votes

In the Senate, the Vice President enjoys the authority to break tie votes. Constitutional text places no restrictions on the types of measures on which he can vote, and the Senate has never circumscribed this power.³⁰ Hamilton noted in Federalist No. 68 that the Vice President was given this assignment in order “to secure at all times the possibility of a definitive resolution of the body.”³¹

Officeholders have cast tie-breaking votes in numerous contexts other than legislation: executive and judicial branch nominations; non-binding Senate resolutions; Senate officer appointments; adjournment efforts; and modifications to treaties and constitutional amendments. Vice Presidents have also decided whether the Senate will request information from the executive branch; if the chamber will uphold the Vice President’s own parliamentary ruling; and how a committee will initiate an investigation.³² In 1881, 2001, and 2021, when the Senate was evenly divided, the Vice President’s tie-breaking votes essentially decided which party would control the chamber.³³ A Vice President is even permitted not to vote, in which case the measure is defeated.³⁴ In the modern era, officeholders have cast their votes consistent with their administration’s policy, but this is not constitutionally prescribed. In the nineteenth century, it was not uncommon for a Vice President to vote contrary to the views of the President.³⁵

The officeholder’s ability to break tie votes is generally influenced by the partisan and ideological composition of the Senate. Not surprisingly, Vice Presidents have exercised this authority frequently when the Senate has been closely divided. As of May 2025, there have been a total of 303 tie-breaking votes. Vice President John C. Calhoun’s record of thirty-one tie-breaking votes was broken by Vice President Kamala Harris, who cast thirty-three.³⁶

Open Questions

• Could a Vice President claim the chair while he is the subject of a Senate impeachment trial?³⁷
• Could the Vice President preside (and break tie votes) when, under the Twelfth Amendment, the Senate is deciding who should be Vice President if the Electoral College failed to produce a majority and the incumbent is a candidate?³⁸

1. Roy E. Brownell II, A Constitutional Chameleon, Part I, 24 Kan. J.L. & Pub. Pol’y 1, 4–5 (2014). ↩︎
2. John D. Feerick, From Failing Hands 23–38 (1965). ↩︎
3. Jamin Soderstrom, Comment, Back to the Basics, 35 Pepp. L. Rev. 967, 982 (2008). ↩︎
4. N.Y Const. of 1777, art. XX. ↩︎
5. Feerick, at 41–43. ↩︎
6. 1 Farrand’s 292. ↩︎
7. 2 Farrand’s 186. ↩︎
8. Id. at 493. ↩︎
9. Id. at 494. ↩︎
10. Joel K. Goldstein, The New Constitutional Vice Presidency, 30 Wake Forest L. Rev. 505, 512–13 (1995). ↩︎
11. 2 Farrand’s 495. ↩︎
12. Id. at 498. ↩︎
13. Goldstein, at 510–18. ↩︎
14. Feerick, at 51–56. ↩︎
15. 3 Elliot’s 487. ↩︎
16. Journal of William Maclay 2–3 (1927 ed.). ↩︎
17. 1 Stat. 23 (1789); 1 Stat. 72 (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, 425–28 (2023). ↩︎
18. 2 U.S.C. § 4591. ↩︎
19. Joel K. Goldstein, Constitutional Change, Originalism, and the Vice Presidency, 16 J. Con. Law 369, 383–403 (2013). ↩︎
20. Roy E. Brownell II, A Constitutional Chameleon, Part II, 24 Kan. J.L. & Pub. Pol’y 294, 329–37 (2015). ↩︎
21. Martin B. Gold, Senate Procedure and Practice 13 (2004). ↩︎
22. Joel K. Goldstein, The White House Vice Presidency 301–15 (2016). ↩︎
23. Art. I, § 3, cl. 5; Am. XX, § 3; Am. XXV, §§ 3, 4. ↩︎
24. Art. I, § 3, cl. 6. ↩︎
25. Christopher M. Davis, Cong. Rsrch. Serv., RL 30960, The President Pro Tempore of the Senate: History and Authority of the Office 9 (2015), https://perma.cc/8L6C-UFGX. ↩︎
26. 81 Cong. Rec. 8839–40 (1937); 83 Cong. Rec. 1062, 2202 (1938); Gold, supra at 40. ↩︎
27. James Wallner, Parliamentary Rule, https://perma.cc/9Q7G-FLQ4. ↩︎
28. Art. 1, § 6, cl. 1. ↩︎
29. In re Grand Jury Subpoena, Case No. Redacted (JEB) (Under Seal D.D.C, Mar. 27, 2023), https://perma.cc/9LJR-779U. ↩︎
30. Dan McLaughlin, Yes, Kamala Harris Can Break a Senate Tie on Biden’s Supreme Court Pick, Nat’l Rev. (Jan. 28, 2022), https://perma.cc/5FWD-9GQ5; Riddick’s Senate Procedure 1395 (1992 ed.). ↩︎
31. Federalist No. 68 (Hamilton) (emphasis added); William Josephson, Senate Election of the Vice President and House of Representatives Election of the President, 11 J. Con. Law 597, 621 n.64 (2009). ↩︎
32. Riddick’s, at 1395; 96 Cong. Rec. 6245 (1950); 22 Senate J. 138–39 (1832); 52 Cong. Rec. 3780–81 (1915). ↩︎
33. 12 Cong. Rec. 33–34 (1881); 147 Cong. Rec 75–88 (2001); Henry Barrett Learned, Casting Votes of the Vice-Presidents, 1789–1915, 20 Amer. Hist. Rev. 571, 573–74 (1915). ↩︎
34. Riddick’s, at 1395. ↩︎
35. Roy E. Brownell II, The Independence of the Vice Presidency, 17 N.Y.U. J. of Legis. & Pub. Pol’y 297, 323–40 (2014). ↩︎
36. Votes to Break Ties in the Senate, United States Senate, https://perma.cc/SCJ7-AQVK. ↩︎
37. Amalgamated Transit Union v. Laidlaw Transit, 448 F.3d 1092, 1100 & n.5 (9th Cir. 2006) (Bybee, J., dissenting); Joel K. Goldstein, Can the Vice President Preside at His Own Impeachment Trial?, 44 St. Louis U.L.J. 849 (2000). ↩︎
38. Josephson, supra at 618–21. ↩︎