The Nation's Top Military Court Rules that a Senator Cannot Wear Two Hats: Does the Ruling Call Into Question Reserve Duty by Members of Congress?

By MICHAEL C. DORF

Monday, Sep. 25, 2006

Last week, the United States Court of Appeals for the Armed Forces (CAAF), the nation's top military court, reversed the cocaine use conviction of Airman Charles Lane, because one of the judges who sat on his intermediate appellate panel was Senator Lindsey Graham. According to the majority opinion, Graham's participation violated the Constitution's Incompatibility Clause, which forbids people from simultaneously holding an "Office under the United States" and serving in Congress.

Citing a string of relatively recent Supreme Court precedents, the CAAF concluded that the position of military court judge is an "Office" that triggers the Incompatibility Clause.

The CAAF ruling raises, but does not answer, a closely related question: If a military judgeship is an "Office" under the Incompatibility Clause, is a military officer's mere membership in the reserves of the armed forces also an "Office" within the meaning of that clause? Why, in other words, can Senator Graham simultaneously serve in Congress, and as a lieutenant colonel in the United States Air Force Standby Reserve?

Towards the end of the Vietnam War, the Supreme Court was presented with just this question: Can members of Congress also serve in the armed forces reserves? But at the time, the Court ducked the issue: In the 1974 case of Schlesinger v. Reservist Comm. to Stop the War, the Justices ruled that the plaintiffs--members of the armed forces reserves who opposed the war--lacked legal standing to challenge the reserve service of members of Congress.

Does the Lane case suggest an answer to the underlying issue of service in the armed forces? And what should that answer be? These questions are difficult. On one hand, service in the armed forces by members of Congress undermines the constitutional balance by placing legislative power in the hands of people who, in another capacity, take orders from the President as Commander in Chief.

On the other hand, as recent experience demonstrates, members of Congress with military experience (and who may therefore still be in the reserves), are more (rather than less) likely than other members of Congress to question the President's judgment in military matters. That, in turn, seems to strengthen our system of checks and balances.

What the Incompatibility Clauses Say

The Constitution contains two Incompatibility Clauses, back to back. Collectively, they read: "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 increased 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 first clause is designed to prevent members of Congress from creating cushy executive jobs and then collecting paychecks in them; a Senator or House member who wants to do this sort of thing must have the decency to wait until his or her term is up before taking the new position. This first clause, however, has no bearing on the question of simultaneous military and congressional service because it refers only to "civil," as opposed to "military" offices.

But the very inclusion of the word "civil" in the first clause makes its absence in the second clause significant. The second clause forbids a person holding "any Office" from simultaneously serving in Congress. Because the limiting word "civil" does not appear in the second clause, ordinary principles of textual interpretation suggest that it includes all offices, including military offices. Thus, a straightforward reading of the constitutional text indicates that, at a minimum, active officers in the armed forces cannot serve in Congress.

That reading makes sense from the standpoint of checks and balances. Members of the armed forces stand in a chain of command going straight to the President. Yet in our system of government, the war power is divided between Congress and the President. Congress declares war, funds military operations, provides rules of discipline, and so forth, while the President, as Commander in Chief, supervises day-to-day operations. A member of Congress taking orders (ultimately) from the President may be reluctant to vote for measures that challenge the strategic or tactical goals of his or her superiors. Conversely, an officer who commands a member of Congress may worry that the latter will use his or her position in Congress to retaliate against the commanding officer for orders he or she would rather not receive.

Are Reservists Subject to the Incompatibility Clause? A Question Committed to Congress, Not the Courts

These arguments explain why the Incompatibility Clause may best be read to forbid members of the armed forces on active duty from serving in Congress, but what about reservists?

In the Schlesinger case, the plaintiffs observed, correctly, that the Constitution draws no distinction between "active" and "reserve" duty. And Justice Douglas, who (along with Justices Brennan and Marshall) dissented in Schlesinger, agreed. He would have reached the merits and barred simultaneous military and congressional service.

Is that a correct reading of the Constitution? Note that the majority in the Schlesinger case did not reject the Douglas view; it merely said the issue was not appropriate for judicial resolution because the plaintiffs lacked standing. And as the dissenters noted, that meant that nobody would likely have standing to challenge congressional service in the reserves (or for that matter, on active duty), so the question would never reach the federal courts at all.

Furthermore, even if a court were to find that someone had standing to challenge congressional service in the reserves, there is another reason the court might deem the matter committed to the judgment of Congress: Article I, Section 5 of the Constitution makes each house of Congress the judge of the qualifications of its members; whether reserve duty violates the Incompatibility Clause could be deemed a question of congressional qualifications that only the relevant house of Congress could decide.

The issue is somewhat clouded, however, by the Supreme Court's 1969 decision in Powell v. McCormack, which said that whether some criterion constitutes a qualification can be determined by the courts; the houses of Congress only get to apply the constitutional criteria for qualification in individual cases.

In Lane itself, the CAAF said that it was not ruling on the ability of Senator Graham or anyone else to serve in Congress. And indeed, none of the precedents on which the CAAF relied specifically involved members of Congress. Those precedents merely said that anybody who sits on a military court must be appointed by the procedures the Constitution establishes for naming "Officers." And because that same term--"Office"--appears in the Incompatibility Clause, the CAAF said, a member of Congress cannot serve on a military court.

To be sure, the dissenting judge in Lane thought that the majority's ruling had the necessary implication that Senator Graham could not continue as a Senator, but the majority made clear that it had no jurisdiction to make that determination. Thus, it remains extremely unlikely that any court would rule that a member of Congress must give up his or her seat because of simultaneous service in the armed forces reserves. The issue, in sum, appears squarely committed to the judgment of Congress.

How Should Congress Handle Military Service by its Members?

An issue can be committed to the judgment of Congress, however, and still remain a matter of constitutional law. For example, during the Clinton impeachment proceedings, both sides repeatedly made constitutional arguments designed to show that the former President's misdeeds were, or were not, in the language of Article II, Section 4, "other high Crimes" or "Misdemeanors."

So how should Congress address military service by its members? Based on its refusal to take up the issue, we know, as a practical matter, that Congress is not about to disqualify reservists. But we can still ask whether that is the right constitutional judgment, or merely an expedient one.

The answer to that question in turn depends on whether one thinks the relevant constitutional language is ambiguous. On one plausible reading, an officer is an officer is an officer--and thus anybody who serves as a military officer, whether on active duty or in the reserves, should be ineligible to serve simultaneously in Congress.

But if one thinks that the meaning of "Office" may depend on practical considerations, then one will be tempted to draw a distinction between persons on active duty and at least some reservists. Current law further distinguishes between members in the "Ready Reserve"--who can be, and in recent years, frequently have been, called to active duty--and members of the "Standby Reserve"--who cannot be called to duty involuntarily unless there are insufficient numbers of Ready Reservists and Ready Reserve units available to handle a military emergency. Members of Congress serve only in the Standby Reserve. Arguably, such reserve service presents too remote a risk of being called up to create a constitutional Incompatibility.

Indeed, if we consider the question purely in functional terms, it appears that the real threat to our constitutional democracy now stems from too few, rather than too many, members of Congress serving in the Reserves. When the Schlesinger case was filed, 130 members of Congress also served in the Reserves. Today, only five do.

The Constitution commits the power to declare war to Congress, rather than the President, so that the nation will not go to war without the concurrence of the most representative branch of the federal government. Military service by members of Congress--even if only through the Standby Reserve--can help ensure that they will contemplate the consequences of war directly, rather than merely for others.

In this context, it may be worth noting that the Senators most willing to challenge the President's judgments about military necessity--Graham, McCain and Warner--all have had substantial military experience. The same is true of Supreme Court Justice and Bronze Star recipient John Paul Stevens, who has been the Court's most consistent skeptic of this President's demands for military deference. (Stevens served as a Navy intelligence officer in World War II.)

Active service in the military by members of Congress may be problematic under the Incompatibility Clause. But so long as there is room for interpretation, democracy is well served by Congress's apparent unwillingness to disqualify the few remaining reservists among its ranks.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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