The constitutional and political reasons Joe Biden could resign after the election

It’s no secret that the tensions between Democrats and Republicans in Congress have only gotten more intense. So I’m going to explore a topic that could very well come up after the November 5 election: could a president Kamala Harris be unable to get her cabinet confirmed, what constitutional options might she have in that case, and how might Joe Biden resigning make those options possible?

Could Republicans block Kamala Harris’s cabinet nominees?

For the purposes of this hypothetical scenario, let’s assume that Kamala Harris and Tim Walz are elected for the presidential and vice-presidential term that starts on January 21, 2021. Right now, it’s impossible to say who will win, but if you believe the poll aggregators, there is about an even chance of this happening.

Those same aggregators give about a nine-in-ten chance that majority control of the Senate will shift from the current 51-49 split favoring Democrats, to one in which Republicans gain the majority. Independent Joe Manchin’s retirement in West Virginia and Democrat Jon Tester’s difficult battle for reelection in heavily Republican Montana make maintaining the Democratic majority a lot less likely.

If this were to happen, president-elect Kamala Harris would be facing a hostile Senate for confirmations of her cabinet nominees at the start of her new term.

It is traditional for the Senate to endorse a new president’s initial nominees for cabinet posts, regardless of party differences. But there are exceptions. Barack Obama’s nominee for Health & Human Services Secretary, Tom Daschle was withdrawn due to accusations about tax evasion. More to the point, in 2021, Joe Biden’s nominee for Secretary of Health & Human Services, Xavier Becerra, was confirmed by a close 50-49 vote and his nominee for Secretary of the Interior, Deb Haaland, was confirmed a vote of 51-40. If Republicans had controlled the Senate in the term starting in 2021, it’s likely that these nominees would have been rejected.

Is it really that much of a stretch to believe that Republicans in control of the Senate in 2025 would make as much trouble as possible for an incoming Democratic president by blocking many of her nominees and making it impossible for her to put a cabinet in place?

What alternatives would Harris have?

Kamala Harris could designate acting cabinet secretaries at the start of her term. But that’s a less than ideal way to start a presidential term, and would certainly set a troubling precedent.

There are other alternatives, though.

There is a lame-duck congressional session that takes place after the election, but before the inauguration of the new president and the swearing in of the new Congress, including the new Senators.

Biden could request resignations from some of his cabinet members and nominate the cabinet that Harris would prefer. The Democratic-controlled Senate (with VP Harris presiding and available to cast tie-breaking votes) could conduct hearings and confirm these nominees. While it’s normal for cabinet nominees to resign at the end of a presidential term, some have stayed over — for example, George W. Bush’s defense secretary Robert Gates retained his position in Barack Obama’s first term. There is no impediment to Biden’s new nominees sticking around for Harris’s first term.

Alternatively, supposed Biden resigned in mid-November once it became clear that Harris had won the election. Harris would automatically become president for the remainder of Biden’s term, with no confirmation required.

Harris’s first order of business would be to nominate a new vice president (likely Tim Walz). According to the 25th Amendment, that nominee would need to be confirmed by a majority vote in both the House and the Senate. It’s not clear if such a nomination would succeed, given the current Republican majority in the House, and the likely Republican outrage at this maneuver. But the vice-president has few responsibilities, and the government would function just fine for the month or so after Harris had acceded to the presidency.

As president for the remainder of Biden’s term, Harris could nominate her cabinet secretaries. The Senate, with a 51-49 Democratic majority including independents who vote with the Democrats, would hold hearings in the lame-duck session and potentially confirm all of Harris’s nominees in advance of the new term. The new Republican-controlled Senate in January could do nothing to stop it.

There are a few challenges to this scenario.

For one, with no vice-president in place during this period, Harris would lose the tie-breaking vote that the vice-president casts in the Senate. If she were to lose even one Democrat or independent senator — for example, if Joe Manchin were to object to these machinations — then the Senate could block her nominees.

And for another, the presiding officer of the Senate has the responsibility of certifying the electoral votes for the new president. If Biden were still president, that duty would fall to Kamala Harris, who would be certifying her own election to the presidency. If she had succeeded Biden after his resignation and there was no vice president in place, that duty would fall to the new presiding officer of the Senate, the most senior member of the majority party, Democrat Patty Murray of Washington. She’d presumably similarly preside over Harris’s certification as president.

The Electoral Count Reform and Presidential Transition Improvement Act of 2022 specifies that the responsibilities of the presiding officer of the Senate in the counting of electoral votes are solely “ministerial.” This provision is intended to prevent vice-presidents from taking matters into their own hands and blocking an otherwise certified election, as Donald Trump had hoped Mike Pence would do on January 6, 2021.

But the risk to Kamala Harris in this scenario is that a single Democratic or independent senator objecting to it could potentially derail the whole scheme by giving Republicans control of the Senate in the lame-duck session. And it would certainly extend the hostility between the new president and the Republican party, not that there’s much room for it to get any worse.

Will any of this happen?

It’s not likely. Even if Harris is elected and Republicans take control of the Senate, the most likely scenario is the usual partisan fighting over cabinet nominations, followed by confirmation of most of those nominees.

But given the strange constitutional and electoral experiences of the last eight years, it certainly wouldn’t surprise me if Biden resigned to smooth a path for Harris’s nominees.

And if that happens, I’ll look like one hell of a prognosticator.