Reservists Committee To Stop War v. Laird

• Decision Date: 02 April 1971
• Docket Number: Civ. A. No. 1429-70.
• Parties: RESERVISTS COMMITTEE TO STOP the WAR et al., Plaintiffs, v. Melvin LAIRD et al., Defendants.
• Court: U.S. District Court — District of Columbia

323 F. Supp. 833

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

Civ. A. No. 1429-70.

United States District Court, District of Columbia.

April 2, 1971.

William A. Dobrovir, Washington, D. C., for plaintiffs.

Stuart E. Schiffer, Dept. of Justice, Mary E. Folliard, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION

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.¹

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 source from which flows its great venality and corruption. (1 Farrand at 379.)

Mr. Mason was also conscious of the British experience:

I admire many parts of the British constitution and government, but I detest their corruption. Why is the power of the crown so remarkably increased the last century? A stranger, by reading their laws, would suppose it considerably diminished; and yet, by the sole power of appointing the increased officers of government, corruption pervades every village in the kingdom. If such a restriction should abridge the right of election, it is still necessary, as it will prevent the people from ruining themselves; and will not the same causes here produce the same effects? I consider this clause as the cornerstone on which our liberties depend—and if we strike it out we are erecting a fabric for our destruction. (1 Farrand at 380-81.)

In response to one amendment offered to weaken the eligibility clause, Colonel Mason "ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the American Soil." 2 Farrand at 284.

Alexander Hamilton eloquently underlined the essentiality of barring Congressmen from holding other office while they retained their membership, even while arguing against further exclusions:

I confess there is danger where men are capable of holding two offices. Take mankind in general, they are vicious—their passions may be operated upon. But we have been taught to reprobate the danger of influence in the British government, without duly reflecting how far it was necessary to support a good government. . . . Our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of these passions, in order to make them subservient to the public good—for these ever induce us to action. Perhaps a few men in a state, may, from patriotic motives, or to display their talents, or to reap the advantage of public applause, step forward; but if we adopt the clause, we destroy the motive. I am therefore against all exclusions and refinements, except only in this case: that when a member takes his seat, he should vacate every other office. (1 Farrand at 381-82.)

The result of the debates was a compromise, first proposed by Madison and later slightly modified. It maintained inviolate the incompatibility of the offices, and limited the ineligibility provision governing offices Congressmen on resignation could accept to offices created or the emoluments of which were increased by Congress during the member's term in office. The purpose of the provision was succinctly stated by Madison in The Federalist No. 76, where in discussing the possibility of collusion between the President and the Senate on executive appointments, he quoted the entirety of Article I, Section 6, Clause 2, in its final form, as establishing "important guards against the danger of executive influence upon the legislative body * * *."

Significantly, some of those who had argued against the original broad exclusion were specifically concerned with the availability of the membership for military service. James Wilson, for example, feared "the fatal consequence in time of war, of rendering perhaps the best Commanders ineligible." 1 Farrand at 376. Gouverneur Morris agreed, and proposed an exception for offices in the Army and Navy. 2 id. at 286, 289. It was perhaps these considerations which led to the compromise which in effect permitted Congressmen to resign and accept certain military or other offices.

Thus the Clause has consistently declared an incompatibility of legislative and executive or judicial offices, rather than a standing qualification (such as age, citizenship or residency) for membership in Congress. It was designed to ensure the integrity of a particular form of government, by preventing encroachments upon the separation of powers; and any violation of the Clause was seen to injure all citizens of the United States, rather than a...