Update: Professor Tillman responds in the comments
Professor Seth Barrett Tillman emails to remind us (among others, see Election Law Blog and the Originalism Blog) of his theory that the President and Vice-President do not hold “offices under the United States” within the meaning of the Incompatibility Clause, and thus that there is no constitutional prohibition on being President/Vice-President and a Member of Congress at the same time.
Just as he argued in 2008 that then-Senators Obama and Biden could remain in the Senate while assuming the presidency and vice-presidency respectively, he believes that Representative Paul Ryan could keep his seat in the House even if he becomes Vice-President.
I have three observations on the subject. First, technically I think that Tillman is correct in saying that Ryan could assume his seat in the 113th Congress even if he is elected as Vice-President. This is so because the Congress will be seated on January 3, 2013, while the Vice-President will not be sworn it until January 20. Until he is sworn in, Ryan does not have an Incompatibility Clause problem.
Second, although there is a Wisconsin statute that declares that if a candidate is “elected president or vice president of the United States such election shall void the candidate’s election to any other office,” this statute is probably unconstitutional as applied to election to Congress. Since Ryan has the constitutional qualifications to be a member of the House unless and until he becomes Vice President, the Wisconsin statute should not prevent him from receiving a certificate of election and being seated on January 3. Of course, it might be difficult to convince the Wisconsin official responsible for issuing the certificate of election (presumably the Secretary of State) of this.
Third, once January 20 rolls around, Ryan will have to decide whether he would rather be Vice-President or a Member of the House. This is so because (1) I think Tillman is wrong that the Incompatibility Clause allows Ryan to serve as Vice-President and as a Member of Congress at the same time; (2) I am quite sure that the House would think that he is wrong; and (3) even if the House were persuaded that Tillman is right, it would still exclude Ryan on the grounds that the duties of the Vice President are “absolutely inconsistent” with those of a Member of Congress (as it has done in the case of Members elected to state offices such as the governorship- see 6 Cannon’s Precedents § 65).
So I guess the question for Ryan would be: is a seat in the House worth less than a bucket of warm spit?
Tillman’s prior writings on the subject may be found below:
Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134 (2008), appearing at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292359
Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009), available at http://tinyurl.com/4j5mjx
Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol’y 143 (2009), available at http://tinyurl.com/yglucrc “