Vice President Elect Joe Biden

Okay – So, we know that Joe Biden won re-election to Senator in his home state of Delaware. He also won the election with Obama as the Vice President. Can he be both a Senator and the Vice President at the same time?

I know you guys are smart enough to realize he can’t hold both positions. But – what happens now? Does he become the Vice President or the Senator to Delaware? That actually is up to him. He’d be pretty stupid to turn down the VP – but – that is an option. But, for purposes of this discussion, we’re going to assume that he does indeed accept the VP position. So – what happens to his Senatorial seat?

This goes to the very heart of our Constitution and the way our system of government was originally designed. Under Article I, Section 6 it states:

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.

The Constitution expressly prohibits him from holding his Senatorial position while he is also the Vice President. The answer to the question regarding what happens to his seat is found under Article I, Section 4:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

And the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

According to the above, Senators are elected by the people of their respective states. As such, they are a representative to the people of the state. While it may not seem it, Senators are actually subordinate, and answer, to the states. The Governor being the elected executive by the people of the state now has the implicit authorized duty to assign the vacated seat to whomever he/she deems fit to hold that seat. The loser of the state’s senatorial election does not automatically get that seat.

The Governor has many options at his/her disposal. The Governor could appoint the loser of the Democratic primary; or appoint the loser of the general election; or appoint a willing and able Biden family member; or appoint anyone else the Governor so chooses.

With that being said, we’ll just have to wait and see who the Delaware Governor chooses.  Considering she’s a Democrat – I doubt seriously she will appoint the Republican loser – Christine O’Donnell – to take his place.  More than likely, she will probably select someone from within the Democratic party in order to maintain the wide majority in Congress.

-Bob O

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