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ArtI.S6.C2.3 Incompatibility Clause and Congress

Article 1, Section 6, Clause 2.

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 encreased 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 Incompatibility Clause forbids Members of Congress from simultaneously holding another federal office.1 The Clause is thus broader than the Ineligibility Clause in some ways, but narrower in others. It is broader in that its prohibition applies to “any Office under the United States,” and not just civil offices that were created or had their compensation increased during the Member’s term.2 But the Clause is narrower in that it only prohibits concurrent office-holding: a Member may generally avoid an Incompatibility Clause violation by resigning his or her seat in Congress to accept appointment to the other federal office (or vice versa).3 As Justice Byron White explained:

[U]nder the [Ineligibility and Incompatibility Clauses], Congressmen were disqualified from being appointed only to those offices which were created, or for which the emoluments were increased, during their term of office. Offices not in this category could be filled by Representatives or Senators, but only upon resignation.4

, 116 Stat. 81.

Like the Ineligibility Clause, courts have largely declined to adjudicate Ineligibility Clause suits based on standing and other justiciability issues. In Schlesinger v. Reservists Committee to Stop the War, the Supreme Court rejected, on standing grounds, an Incompatibility Clause challenge to certain Members of Congress’s holding of commissions in reserve components of the U.S. Armed Forces.5 The Court, relying on Ex parte Levitt, held that the plaintiffs lacked a concrete injury as either citizens or taxpayers to sue for the alleged Incompatibility Clause violation.6 The Supreme Court therefore did not reach the merits of dispute, which included arguments over whether a commission in the Reserves was an “office” within the meaning of the Clause and whether such Incompatibility Clause determinations rest exclusively with Congress.7

Although Schlesinger held that citizens do not generally have standing to enforce the Incompatibility Clause, lower courts have occasionally heard Incompatibility Clause disputes in particular circumstances. In United States v. Lane, a service member convicted of wrongful use of cocaine had his conviction affirmed by a panel of the Air Force Court of Criminal Appeals that included Senator Lindsay Graham (who was also an officer in the United States Air Force Standby Reserve).8 The lower court denied the service member’s motion to disqualify the Senator from the panel based on the Incompatibility Clause.9 On subsequent appeal, the U.S. Court of Appeals for the Armed Forces held this to be in error, finding that the service member had standing and that the Incompatibility Clause prevented a Senator from serving as an appellate judge on a military court of criminal appeal.10

Relying on its constitutional power to determine the qualifications of its own Members,11 Congress—rather than the courts—has been the primary enforcer of the Incompatibility Clause. Thus, Congress has voted to deny seats to putative Members, or declared Members’ seats to be vacant, based on their holding or acceptance of incompatible offices.12 An early example of this practice occurred in the Seventh Congress, which relied on the Incompatibility Clause to declare the seat of then-Representative John P. Van Ness vacant based on his acceptance of the office of major in the District of Columbia militia.13

A recurring and unsettled issue relates to whether Members of Congress may simultaneously serve in the U.S. Armed Forces reserve despite the Incompatibility Clause.14 Early congressional practice held that accepting a commission as an officer in the Army forfeited a Member’s seat in Congress.15 In 1916, during the First World War, the House Judiciary Committee issued a report finding that acceptance of a commission in the National Guard would vacate that Member’s seat.16 However, Congress did not act on the report.17 During World War II, an opinion of the Attorney General concluded that Members would forfeit their seat if they entered the armed forces by enlistment or commission, should Congress “choose to act.” 18 The opinion therefore urged the President to refrain from commissioning Members.19 In recent decades, Congress has declined to take any action against Members holding Reserve or National Guard commissions, which may suggest acceptance of the practice.20

See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 210 (1974). back
U.S. Const. art. I, § 6, cl. 2 (emphasis added). back
See, e.g., 2 Deschler’s Precedents § 13 (1976) (Member-elect may hold incompatible office if that office is resigned prior to the convening of Congress); accord 1 Hinds’ Precedents §§ 497–98 (1907). back
Buckley v. Valeo, 424 U.S. 1, 272–73 (1976) (White, J. dissenting), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No.
, 116 Stat. 81
. back
418 U.S. at 209. back
Id. at 217–28. back
Id. at 212–14. The President’s Office of Legal Counsel has adopted the latter view, opining that “exclusive responsibility for interpreting and enforcing the Incompatibility Clause rests with Congress.” Members of Cong. Holding Rsrv. Comm’ns, 1 Op. O.L.C. 242, 242 (1977). The Supreme Court has noted this as an open question but has not resolved it. Powell v. McCormack, 395 U.S. 486, 521 n.41 (1969) ( “It has been argued that [the Incompatibility Clause and other provisions] is no less a ‘qualification’ within the meaning of Art. I, § 5, than those set forth in Art. I, § 2. We need not reach this question, however . . . .” ) (citations omitted). back
64 M.J. 1, 2 (C.A.A.F. 2006). back
Id. back
See id. at 3–4, 6–7. back
See supra ArtI.S5.C1.1 Congressional Authority over Elections, Returns, and Qualifications. back
See, e.g., 6 Cannon’s Precedents §§ 60, 65 (1935); 1 Hinds’ Precedents §§ 486, 487, 488, 492, 501, 504 (1907). back
See 1 Hinds’ Precedents § 486 (1907). back
2 Deschler’s Precedents § 14 (1976) ( “An unresolved issue relating to incompatible offices and military service is the status of Members of Congress who hold reserve commissions in branches of the armed forces. Congress has declined on several occasions to finally determine whether active service with the reserves is an incompatible office under the United States.” ). back
See, e.g., 1 Hinds’ Precedents §§ 487–92, 494 (1907). back
See 6 Cannon’s Precedents § 60 (1935). back
Although the Members kept their seats, the Speaker of House initially declined to pay the salaries of Members who had accepted commissions. See David J. Shaw, An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve, 97 Geo. L.J. 1739, 1750 (2009). A few years later, Congress voted to pay salaries to such Members, less the compensation received from the Army. Id.; 6 Cannon’s Precedents § 61 (1935). back
Members of Cong. Serving in the Armed Forces, 40 Op. Att’ys Gen. 301, 303 (1949). back
Id. back
2 Deschler’s Precedents §§ 14, 14.1, 14.4 (1976). For a review of arguments as to whether the Incompatibility Clause permits or forbids dual service in Congress and the armed forces reserve, see Shaw, supra note 17, at 1755–66. back