Today is Constitution Day (observed). Constitution Day is really celebrated on September 17th, but we can't be trusted to acknowledge the document that grants us our rights and freedoms on a Saturday, can we? So that you may ponder the importance of the Constitution--today or tomorrow, as your schedule allows--we share with you this electrifying post from Jay Wexler, author of the forthcoming (and anticipated! by Amazon!) book The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. The post orginally appeared on his blog.

I hate it when I have to break news that may “alter” the “course” of “American history,” but sometimes that’s what you’ve got to do when you’re an odd clauses expert. The other night I was watching the local news when they did a story on how Senator Scott Brown just came back from a week of service in Afghanistan. Apparently, Brown is in the Massachusetts National Guard and is a member of the JAG Corps. Hearing that a Senator was also serving in the military, at least in some capacity, raised my Incompatibility Clause hackles.

The IC, located in Article I, Section 6, provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” The clause is the subject of the first chapter of my forthcoming book. It originally served an anti-corruption purpose–the framers disliked how the English Kings would offer plum executive branch offices to members of Parliament who supported their legislative agendas. Over time, in the United States, the clause has become a key structural provision in our scheme of separated powers. According to the leading academic article on the clause, one author of which, at least, is a major figure in conservative legal circles, the principle embodied by the IC is “one of the five great distinguishing structural features of our constitutional system.”

Can someone be in both the Senate and the National Guard?  I wasn’t sure.  There’s a big case from the 1970s which involved an IC challenge to army reservists who also served in the House of Representatives.  The district court said this was a violation of the clause, and the court of appeals affirmed, but the Supreme Court dismissed the case on procedural grounds (for lack of “standing”).

Of course, the National Guard is not the same thing as the army reserves.  Still, though, Senator Brown’s dual positions led one blogger/observer back in January 2010 to twice tweet (that was fun to write) Brown and ask whether Brown planned to resign his position with the Guard.  When Brown didn’t reply and the blogger happened to see Brown on the street in Southie, he got out of his car and asked Brown directly. Apparently, Brown said that membership in the Guard didn’t count for IC purposes. The account of this meeting is here.

Well, I wanted to do some research into this constitutional question, but the fact is I’m a little too busy at the moment, especially given that on Wednesday I have to teach American Indian Law for the very first time ever and then get on a plane to go to Santiago, Chile for a conference.  (anyone have any recs about what to see/do/eat in Santiago?).

So, I decided instead to pose this question to one of the world’s biggest experts in the Constitution’s odd clauses.  Seth Barrett Tillman is a Lecturer of Law at the National University of Ireland, Maynooth.  He’s published a bazillion articles on all sorts of things, mostly the U.S. Constitution and its more obscure parts.  He’s a master of parsing the specific language of the text and making ingenious and provocative arguments–often controversial–about its meaning.  Tillman makes a couple of appearances in The Odd Clauses, one in the IC chapter and one in a chapter about the Recess Appointments Clause.  I asked Tillman what he thought of the National Guard/Senator/IC issue, and this is what he said:

You ask whether there is any incompatibility between a member of Congress and in the National Guard, positing that Senator Brown is serving in JAG as a National Guardsmen.  In analyzing this question, one starts with the Constitutional text:

[The Ineligibility Clause] 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 [The Incompatibility Clause] no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

U.S. Const. Article 1, Section 6, Clause 2 (emphasis added).

The precise reach of Office under the United States (as used in the Incompatibility Clause) is disputed.  For example, some commentators have taken the position that Office under the United States (as used in the Incompatibility Clause) is coextensive with Office of the United States (as used in the Appointments Clause, the Commissions Clause, and the Impeachment Clause).  Professors Akhil Amar, Vikram Amar, and (recently) Saikrishna Prakash have taken this position.  All agree that Office of the United States includes officers appointed under the aegis of the Appointments Clause, Inferior Office Appointments Clause, and Recess Appointments Clause.  In other words, Office of the United States includes persons appointed by the President, Heads of Departments, or a Court of Law to statutory offices in the Judicial or Executive Branches.

The Amars and Prakash would also include the President (and, perhaps, the VP) in the category of Office of the United States.  However, the Impeachment Clause states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Justice Story, noting the absence of the word “other” between “all” and “civil,” argued that the President is named in “contradistinction” from “offices of the United States” and, therefore, the President is not encompassed in that category.  I agree with Story.  (A similar point was made by Chief Justice Roberts in the recent Free Enterprise decision).

Professor Steven Calabresi takes a more nuanced approach and once argued that Officers under the United States is a superset of Offices of the United States, with the presidency included in the former category, even if not in the latter.  My own view is that Calabresi is only half-right.  Office under the United States is more expansive than Office of the United States, but the presidency is not in either category.  When the Constitution seeks to include the presidency, it does so expressly (as in the Impeachment Clause) or uses the more encompassing phrase: Public Trust under the United States (as used in Article VI).

Thus, Office under the United States includes all holding statutory offices (offices created by Congress, or which Congress could destroy by statute, in the sense of removing all the office’s emoluments or powers vis-a-vis the public and/or the other branches).  In other words, Office under the United States includes all holding any Office of the United States and all holding an appointment to any House or Senate office . . . such as the Secretary of the Senate or Clerk of the House, i.e. non-member, non-presiding officers of either House.  To wrap it up, under any of these opinions which I have just discussed . . . that of Akhil Amar, Steven Calabresi, Justice Story, or my own . . . a commissioned officer in the National Guard holds an Office under the United States.  I explain why that is in greater detail below.

In the 18th and 19th century, being in Congress and in a state militia was not a problem.  There was no textual incompatibility.  State militia was state office, which does not trip the Incompatibility clause.  And if the militia were activated, which put it under the command of the President, the status of the office did not change, it remained a state office, although it took on the characteristic of an “office under the Authority of the United States,” which would trip the Ineligibility Clause – - not the neighboring Incompatibility Clause.  So being in the Militia had some implications for joint office-holding even then.  Of course, if the militia were the D.C. militia or the militia of some other federal territory or enclave, then the position would have held a federal office, and such a person would also be under the aegis of the Incompatibility Clause (not just the Ineligibility Clause).  My analysis here adheres to the early congressional precedents, but, admittedly, the record is mixed.  The House once held that there is a prohibited incompatibility between the office of state governor and Representative.  Its reasoning is obscure.

In the early 20th century, prior to WWII, the status of the state militias changed.  Because of several statutory reforms, the state militia evolved into the National Guard.  Officers of the National Guard have true dual status–they take both state and federal oaths of office and the officers hold federal commissions–subject to Presidential nomination and Senate advice and consent.  (Arguably National Guardsmen who are noncommissioned officers or persons below that status [i.e., enlisted personnel], although federal employees in the national military, are not office-holders, and so do not activate the Incompatibility Clause.)  In the constitutional sense, National Guard officers are virtually indistinguishable from other Executive Branch military officers.  So if you look to pre-20th century jurisprudence, if you examine cases relating to the old state militias, which barely have any existence today, your (original public meaning) analysis will go astray.  Professors Jerry Cooper and Steve Vladeck have written on this evolution.  I have too (here and here).

Today, I would say that there is an incompatibility between being a Senator/Representative and a commissioned officer in the National Guard.  One federal court has so held . . . see United States v. Lane, No. 05-0260 (C.A.A.F. 2006) (Gierke, C.J.) (holding that panel of military judges convicting defendant, which included Senator Graham, was improperly constituted, and remanding for a new trial).  Judge Crawford, later Chief Judge Crawford, wrote a spirited–but ultimately unconvincing–dissent.  There is a student note reaching this conclusion–that there is an incompatibility–see David J. Shaw, Note, An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserves, 97 Geo. L. J. 1739, 1742 (2009).  The Shaw note is less than perfect, but it ultimately does come down the correct way and he cites a plethora of good material.  If these issues interest you, you might want to consider reading my . . . Seth Barrett Tillman, The Originalist Who Came in From the Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination 1-92 (2011) (unpublished manuscript, on file with author),available here.

Standing, justiciability, and remedy are different questions.

Well, there you have it, folks.  I should add that the “standing” issue–essentially, whether a court would ever actually entertain a challenge to Brown’s dual office holding–is beside the point.  As a Senator, Brown has taken an oath to uphold the Constitution, and so he has an obligation to act consistently with the Incompatibility Clause regardless of whether any court would ever enter an order against him.

As I said, I hate to throw the republic into disarray, but sometimes you gotta do what you gotta do.