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RESERVISTS COMM. TO STOP v. LAIRD

April 2, 1971

RESERVISTS COMMITTEE TO STOP the WAR et al., Plaintiffs,
v.
Melvin LAIRD et al., Defendants


Gesell, District Judge.


The opinion of the court was delivered by: GESELL

GESELL, District Judge.

 This case presents the discrete question whether under Article I, Section 6, Clause 2 of the Constitution of the United States a person may at the same time be a member of Congress and hold a commission in the Armed Forces Reserve. The meaning and effect of this constitutional provision have never before been determined by a court. There is no factual dispute, and the legal issue has been tendered on cross-motions for summary judgment and has been fully briefed and argued.

 Article I, Section 6, Clause 2 of the Constitution reads in its entirety as follows:

 
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.

 Plaintiffs ask the Court to implement this constitutional requirement by declaratory judgment and by injunction against the Secretary of Defense and the Secretaries of the Army, Navy, and Air Force, upon the undisputed showing that at the present time 117 Senators and Representatives hold commissions in the Army, Navy, Air Force or Marine Corps Reserves subject to the rights and duties of reservists as specified in 10 U.S.C. chs. 11 and 39. This action does not seek to remove any Congressman from his elected office, nor to declare that any Congressman lacks the qualifications for the Senate or the House of Representatives. Rather it proceeds on the assumption that the Executive branch can be directed to take steps that will eliminate any office inconsistent with the constitutional mandate.

 Initially a determination must be made as to whether plaintiffs have standing to bring this action. The issue then becomes whether a commission in the Reserve is an "office under the United States." For reasons that will appear, the Court is satisfied that plaintiffs have the requisite standing, and a determination is thus required whether a Reserve commission is within the ambit of "office" as that term is used in the Constitution. Because the Clause must be considered on the merits and its meaning and effect has some bearing on resolution of the standing question, the Court will first consider the merits before turning to a more detailed discussion of the justiciability of the controversy and the nature of the relief that shall be granted in this case.

 I. The Meaning and Purpose of the Clause

 At the outset it will assist an understanding of the issues here presented to review briefly the origin and intended meaning of the constitutional provision this litigation puts into focus. The sources of this review are primarily the proceedings of the Constitutional Convention and certain passages in the Federalist Papers.

 The wording of the Clause as reported to the Constitutional Convention by the Committee of Detail was as follows:

 
The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards. *fn1"

 It will be noted that this clause contained two distinct prohibitions: one against the simultaneous holding of incompatible offices, and the other against the appointment of a member of Congress to executive office during the term for which he was elected and, in the case of Senators, for one year thereafter.

 The wisdom of the "incompatibility clause," barring the simultaneous holding of executive and legislative office, was universally accepted throughout the debates in the Convention. The discussion turned around the desirability of the "ineligibility clause," which prohibited a member of either House from resigning his legislative duties to accept executive office. While this discussion was therefore a bit tangential to the key issue presented here -- that of the incompatibility of offices -- it is highly informative as to the true meaning and purpose of that portion of the final Article which directs that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

 This clause had its origin in a strong belief by the Framers in the principle of separation of powers, and a desire to avoid the example of England, where, the Framers believed, elected officials had been subverted by appointments to office by the Crown. This view had such strength that strong objections were raised to weakening the original proposal by amendment in any respect.

 A few of many instances may be cited to give the flavor of the debates. Elbridge Gerry warned:

 
It appears to me, that we have constantly endeavored to keep distinct the three branches of government; but if we agree to this motion, it must be destroyed by admitting the legislators to share in the executive, or to be too much influenced by the executive, in looking up to him for offices. (1 Farrand at 393.)

 To a suggestion that "in this instance we refine too much," Mr. Butler responded:

 
We have no way of judging mankind but by experience. Look at the history of the government of Great Britain, where there is a very flimsy exclusion -- Does it not ruin their government? A man takes a seat in parliament to get an office for himself or friends, or both; and this is the ...

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