Are Lindsey Graham and Scott Brown Incompatible?

Under Article I, section 6, clause 2, I mean.

That Clause provides in pertinent part that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Under this provision, known as the Incompatibility Clause, holding an office “under the United States” is deemed incompatible with service in the U.S. Congress.

Senator Graham serves in the U.S. Air Force Reserves. From time to time he has been called to active duty, including three “mini-tours” in Iraq. During one of his stints on active duty, the Judge Advocate General of the Air Force assigned Graham to sit as a judge on the Air Force Court of Criminal Appeals, an intermediate appellate court in the military justice system. In that capacity, Graham served in 2004 on a panel that upheld the conviction of an airman charged with drug use.

Senator Brown is a member of the Massachusetts Army National Guard. He also is called to active duty from time to time, including a recent week-long training stint in Afghanistan.

As military officers, albeit part-time and normally inactive, Graham and Brown might be thought to hold  “office[s] under the United States” which would make them ineligible to serve in Congress under the Incompatibility Clause. There seems to be little question that the Incompatibility Clause applies to military offices and thus that regular active-duty officers in the United States military are prohibited from serving in Congress. See Note, “An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve,” 97 Geo. L.J 1739, 1744-45 (2009) (collecting evidence that the Framers understood the Incompatibility Clause applies to military offices).

But what about other types of military positions? Here it gets murkier. In 1803, the  House addressed the question of whether Representative Van Ness, who had been appointed by the President as a militia officer in the District of Columbia, was therefore disqualified from further service in Congress under the Incompatibility Clause. Van Ness argued that (1) he was not an officer of the United States, but merely of a dependent entity (the District of Columbia), (2) applying the Incompatible Offices Clause to him would mean also excluding all state militia officers because they were also subject to the command of the United States, and (3) excluding him would not serve the purposes of the Clause because his office had no emoluments and therefore presented no danger that he could be corrupted by the executive branch.

The House, however, rejected Van Ness’s arguments. The Committee on Elections, which recommended Van Ness’s exclusion, felt that the explicit words of the Incompatibility Clause required its application to Van Ness’s case. Moreover, it was urged that the House should establish an “important precedent” by rejecting Van Ness’s arguments in order “to exclude even the shadow of Executive influence.” The House did so, voting unanimously that Van Ness had forfeited his seat. I Hinds Precedents §486.

The Van Ness precedent would tend to support the conclusion that Graham and Brown hold incompatible offices. A reservist, like Graham, is appointed by the President and holds a commission in the U.S. armed forces and, thus, under the logic of the Van Ness case, falls literally within the terms of the Incompatibility Clause. Because the National Guard descends from the state militias Brown’s status is arguably more ambiguous, but as Seth Barrett Tillman argues here, officers in the modern National Guard also hold federal commissions and are appointed by the President, and should therefore be treated the same as reservists. Moreover, both reservists and National Guardsmen may (in my understanding) be called to active duty by the President and ordered to deploy anywhere in the world. This would seem to amount to at least a “shadow of Executive influence.”

Although there is a strong argument that reserve and National Guard officers fall within the Incompatibility Clause, it is not unassailable. For one thing, it may be argued that these officers do not qualify as “officers of the United States” under the test set forth by the Supreme Court for purposes of the Appointments Clause. Specifically, they exercise only “temporary and occasional” authority for the period of time when they are on active duty for training purposes; while they are inactive, they can exercise no sovereign power and are not subject to executive control. The authority normally exercised while on training, moreover, is arguably not the type of sovereign authority that is characteristic of an officer of the United States. Thus, while the U.S. Court of Appeals for the Armed Forces held that it violated the Incompatibility Clause for Graham to exercise the authority of a military judge, it made no judgment as to whether the service or active-duty training of a reservist would do so.

In addition, because these offices involve no emoluments (except for the brief period of time when they are on active duty), they pose little risk of corruption or bribery by the executive. Finally, Congress has explicitly provided by statute, 5 U.S.C.  §2105(d), that a reservist “who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States.”

These considerations formed the basis of then-Solicitor General Robert Bork’s argument to the Supreme Court that there was no Incompatibility Clause violation with respect to more than 100 Members of Congress who were in the reserves during the Vietnam War. The Supreme Court did not reach the issue, however, holding that Vietnam War opponents lacked standing to challenge the alleged violation. See Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974).

Because each house of Congress has the constitutional power to judge the qualifications of its members, the principal, if not sole, responsibility for judging Incompatibility Clause violations lies with Congress. Given that hundreds of Representatives and Senators have served in the reserves or National Guard over the course of the last century, one would think that the House and Senate would have long since decided whether such service was a violation of the Clause. One would, however, be wrong. From 1916 to 1921, the question of service in the National Guard arose several times in the House. Although the weight of opinion appears to have supported the view that accepting a commission in the National Guard would violate the Clause and require forfeiture of one’s seat, and the House Judiciary Committee produced a report to this effect in 1916, no action was in fact taken against Members who accepted such commissions.

The Senate similarly declined to take any action to resolve the issue. Senator Barry Goldwater, who was an officer in the reserves, offered a resolution in 1963 to have an inquiry into this constitutional question. The resolution was referred to the Senate Judiciary Committee, but neither the committee nor the Senate took any action. Goldwater then took to the floor to report the results of his own research into the subject, concluding (on grounds similar to those later argued by Bork) that reserve commissions were not incompatible offices.

Thus, as this CRS report observes, “the issue of whether a Member may serve in Congress and the Reserves simultaneously has never been clearly resolved.”

As a matter of constitutional policy, the most serious concern regarding such simultaneous service is the potential that a President could exercise control over a Member of Congress by calling him for active duty (or threatening to do so), thereby taking the Member away from his congressional duties (or forcing him to resign his seat). This problem, however, could be solved short of finding a Incompatibility Clause violation if a Member had the option or resigning his or her commission rather than comply with the President’s order.

It should also be noted the Incompatibility Clause, even if enforced, would not offer a complete defense to the potential for executive mischief-making. The Clause only applies to officers in the reserves or National Guard; it would not prevent a Member from serving in an enlisted or non-commissioned officer capacity in the reserves, National Guard or even the active duty military. Moreover, while there may be a more abstract separation of powers rationale for restricting Members from serving as an “officer” in the executive branch, it seems to me much worse from such perspective that a Member could, apparently, serve as White House Chief of Staff without violating the Clause.

In short, I think it would be defensible for the House and Senate to resolve this question either way. Less defensible is the failure to decide it at all.