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ArtI.S6.C2.1 Overview of Federal Office Prohibition

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 second clause of Article I, Section 6 contains two provisions disqualifying Members of Congress from holding other federal offices, such as those in the Executive or Judicial Branches of government. The first provision is generally known as the Ineligibility Clause,1 and precludes Members from being appointed to federal civil offices that were created (or had their compensation increased) during their congressional term for the length of their elected term. The second provision, often called the Incompatibility Clause,2 forbids a Member from simultaneously holding “any Office under the United States.”

The essential distinction between the Ineligibility and Incompatibility Clauses is one of timing.3 The Incompatibility Clause forbids only concurrent officeholding, so incompatibility violations can generally be prevented by resigning either the other federal office or one’s seat in Congress.4 In contrast, the Ineligibility Clause forbids appointment to a federal office that was created or had its compensation increased during a Member’s elected term for the length of that term; it thus may apply even if the Member is willing to resign his or her seat in Congress to take the other office.5

Both Clauses seek to prevent corruption and ensure the separation of powers between the federal executive and Legislative Branches of government.6 As Justice Antonin Scalia explained:

The Framers’ experience with post revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. The foremost danger was that legislators would create offices with the expectancy of occupying them themselves. This was guarded against by the Incompatibility and Ineligibility Clauses.7

Edmond Randolph introduced what became the Ineligibility and Incompatibility Clauses at the Constitutional Convention as part of the resolutions of the Virginia Plan.8 The original proposed language would have prohibited Members of Congress from holding any state or federal office during their elected term and for a period of time thereafter,9 later set at one year.10 The scope of Members’ eligibility for other offices was debated during the Convention.11 Some delegates favored stricter ineligibility rules to prevent corruption,12 while others wished to limit the provision to forbid only concurrent officeholding (i.e., incompatibility) so as not to render worthy Members ineligible for Executive office.13

Early in the Convention, Nathaniel Gorham moved to strike the Ineligibility Clause, which—after a debate that revealed the Framers’ divergent views on this issue—failed by an equally divided vote.14 James Madison then proposed a “middle ground” provision, which would limit ineligibility of Members only to federal offices that were created, or had their emoluments increased, during the Members’ term.15 Madison’s compromise failed to be approved by the Convention when first proposed.16 Charles Pinckney, who had earlier successfully moved to limit the Ineligibility and Incompatibility Clauses to only federal (and not state) offices,17 moved to limit the provision to forbid only concurrent officeholding, but failed in that effort.18

Late in the Convention, after another failed motion by Pinckney to remove the ineligibility provision,19 the substance of Madison’s compromise was re-introduced and was narrowly passed by the Convention.20 With some stylistic changes, the Ineligibility and Incompatibility Clauses were incorporated into the Constitution.21

See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 210 (1974) (using “Ineligibility Clause” to refer to the first half of U.S. Const. art. I, § 6, cl. 2). Other names for this provision include the Emoluments Clause and the Sinecure Clause. See Seth Barrett Tillman, Originalism and the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59, 64 n.12 (2014). back
See, e.g., Schlesinger, 418 U.S. at 210 (using “Incompatibility Clause” to refer to the second half of U.S. Const. art. I, § 6, cl. 2). back
See Buckley v. Valeo, 424 U.S. 1, 272–73 (1976) (White, J., dissenting) (explaining the distinction between the Clauses), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107–155, 116 Stat. 81. back
See ArtI.S6.C2.3 Incompatibility Clause and Congress. back
See ArtI.S6.C2.2 Ineligibility Clause (Emoluments or Sinecure Clause) and Congress. back
See The Federalist No. 76 (Alexander Hamilton) (describing the Ineligibility and Incompatibility Clauses as “important guards against the danger of executive influence upon the legislative body” ); Buckley, 424 U.S. at 124 ( “The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called ‘Ineligibility’ and ‘Incompatibility’ Clauses contained in Art. I, § 6. . . .” ); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 869 n.11 (1995) (Thomas, J., dissenting) ( “The Ineligibility Clause was intended to guard against corruption.” ). back
Freytag v. Comm’r, 501 U.S. 868, 904 (1991) (Scalia, J., dissenting) (citations omitted). back
1 The Records of the Federal Convention of 1787, at 20–21 (Max Farrand ed., 1911) [hereinafter Farrand’s Records]. back
Id. back
Id. at 217, 235. back
For historical perspectives on the framing of the Ineligibility and Incompatibility Clauses, see, for example, John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intruder in A Federalist Constitution, 24 Hofstra L. Rev. 89, 91 (1995); Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045 (1994); Daniel H. Pollitt, Senator/Attorney-General Saxbe and the “Ineligibility Clause” of the Constitution: An Encroachment upon Separation of Powers, 53 N.C. L. Rev. 111 (1974). back
See, e.g., 1 Farrand’s Records, supra note 8, at 387 (comments of George Mason), 387–88 (comments of Roger Sherman). back
See, e.g., 1 Farrand’s Records, supra note 8, at 381–82 (comments of Alexander Hamilton); 2 Farrand’s Records, supra note 8, at 490 (comments of Charles Pinckney). back
1 Farrand’s Records, supra note 8, at 379–82. back
See 1 Farrand’s Records, supra note 8, at 386–88. back
1 Farrand’s Records, supra note 8, at 390. back
Id. at 386. back
2 Farrand’s Records, supra note 8, at 283–84, 289. Pinckney’s proposal, which lost by an evenly divided vote, would have made Members incapable of holding any federal office for which they “receive any salary, fees or emoluments of any kind—and the acceptance of such office shall vacate their seats respectively.” 2 Farrand’s Records, supra note 8, at 284. back
2 Farrand’s Records, supra note 8, at 489–90. back
2 Farrand’s Records, supra note 8, at 491–92. back
2 Farrand’s Records, supra note 8, at 568 (Committee of Style draft), 654 (final language). back