Incompatibility Clause

Scope

The Clause covers "any Office under the United States" — broader than the Ineligibility Clause's "civil Office." This encompasses military as well as civil offices, though the reserve-commission question is unsettled (see below).

A Member may generally avoid an Incompatibility Clause violation by resigning from Congress before accepting the other federal office (or vice versa). Justice White explained: "Offices not in [the Ineligibility Clause] category could be filled by Representatives or Senators, but only upon resignation." Buckley v. Valeo, 424 U.S. 1, 272–73 (1976) (White, J., dissenting).

Anti-corruption purpose

The Clause shares the Ineligibility Clause's anti-corruption rationale: preventing legislators from creating offices they plan to occupy themselves, and preventing the executive from gaining legislative allies through appointment. *The Federalist No. 76* (Hamilton) described both clauses as "important guards against the danger of executive influence upon the legislative body."

Story's Commentaries: a considered defense, and a real doubt

Story treats the Incompatibility Clause as the more "universally applauded" of the two disqualification rules, resting it on state jealousy — "a sincere desire to obviate the fears, real or imaginary, that the general government would obtain an undue preference over the state governments" — and on the standard anti-corruption rationale shared with the Ineligibility Clause.

But Story then does something unusual for the Commentaries: he lays out, at length and largely in his own voice rather than by quoting a ratification-era source, a sustained argument that the clause's cost may exceed its benefit, because it forecloses the British practice of letting cabinet ministers sit in and answer to the legislature directly:

"The heads of the departments are, in fact, thus precluded from proposing, or vindicating their own measures in the face of the nation in the course of debate; and are compelled to submit them to other men, who are either imperfectly acquainted with the measures, or are indifferent to their success or failure. Thus, that open and public responsibility for measures, which properly belongs to the executive in all governments... is completely done away. The executive is compelled to resort to secret and unseen influence, to private interviews, and private arrangements, to accomplish its own appropriate purposes." — Joseph Story, Commentaries on the Constitution § 866 (1833)

Story pushes the argument to its sharpest point — that barring executive officers from Congress does not eliminate executive influence over legislation, it only drives that influence out of public view:

"If corruption ever eats its way silently into the vitals of this republic, it will be, because the people are unable to bring responsibility home to the executive through his chosen ministers. They will be betrayed, when their suspicions are most lulled by the executive, under the disguise of an obedience to the will of congress." — Joseph Story, Commentaries on the Constitution § 866 (1833)

He contrasts the British model, where a minister's acceptance of crown office vacates the seat but the minister is generally reeligible and continues to sit and answer questions in the Commons, producing "an open public responsibility" that the American design forecloses (§ 868). Story does not resolve the debate — he presents it as one where "many enlightened statesmen have not only been led to doubt, but even to deny the value of this constitutional disqualification" — but records that "the reasoning from the British practice has not been deemed satisfactory by the public; and the guard interposed by the constitution has been received with general approbation" (§ 869).

key-insight

Story is not a modern critic reading separation-of-powers theory backward onto the Founding — he is a sitting Justice in 1833 giving a comparative-institutional argument against his own era's settled constitutional design, on the ground that public, on-the-record executive accountability (the British model) may check corruption better than a hard wall of disqualification (the American model). This is a rare case in the Commentaries where Story records real analytical doubt rather than defending the ratified text as self-evidently correct.

Convention debate: incompatibility alone was not enough

On September 3, 1787, Charles Pinckney moved to replace the Committee of Eleven's combined ineligibility-and-incompatibility report with a bare incompatibility rule: "The members of each House shall be incapable of holding any office under the U-- S-- for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively." Pinckney "was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility." The Convention rejected the substitute 2 ayes–8 noes, preserving the stronger Ineligibility Clause alongside the Incompatibility Clause. Sherman explained the guiding principle for both provisions together: "The Constitution shd. lay as few temptations as possible in the way of those in power." — Records of the Federal Convention (Madison, 3 Sept. 1787)

New York ratifying convention: an unopposed reinforcing amendment

The New York convention's Art. I §6 debate, 26 June 1788, is the wiki's first record of a ratifying-convention floor amendment restating rather than attacking the Clause. Mr. Lansing proposed the following, combining language tracking both the Ineligibility Clause and the Incompatibility Clause into a single restatement:

"No senator or representative shall, during the time for which he was elected, be appointed to any office under the authority of the United States, and no person holding any office under the United States shall be a member of either house during his continuance in office." — Mr. Lansing's proposed amendment, New York Convention, 26 June 1788

Elliot records that "no debate took place" on the motion — distinct from nearly every other clause in the convention's Art. I record, where even uncontested paragraphs typically drew at least a brief remark. The amendment's substance restates, rather than expands or narrows, the enacted disqualification rules already in the Constitution's text.

gap

Elliot's text does not record a vote on Lansing's motion in this range, and it is not yet confirmed in this wiki whether it survived into New York's final list of recommended amendments transmitted with its ratification instrument.

Virginia ratifying convention: Mason reads the whole clause verbatim, and calls it no restraint

George Mason's 11 June 1788 speech to the Virginia convention is the wiki's second ratifying-convention floor source, after Lansing's New York amendment (above), to read both halves of Art. I §6 cl. 2 together — but where Lansing merely restated the clause without opposition, Mason quoted it to attack it, calling the combined disqualification "no restraint at all" once the government begins operating (see Ineligibility Clause for the fuller quotation and argument, which is addressed mainly to that clause's "created... or emoluments... increased" limitation rather than to the Incompatibility Clause's simultaneous-service bar specifically):

"The clause runs thus: '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.'" — George Mason, Virginia Convention, 11 June 1788

key-insight

Mason's quotation and Lansing's amendment (above) are the wiki's only two ratification-era floor readings of the combined clause text. They point opposite directions: Lansing's motion drew "no debate" because it merely restated settled text; Mason's identical text, read to a convention that could still reject the Constitution, became the occasion for his "wide a door for corruption as in any government in Europe" attack (see Ineligibility Clause).

The Van Ness case and the Contractors resolution: two floor debates behind the "primary enforcer" record

The Justiciability section below cites the Seventh Congress's Van Ness precedent in a single line. Elliot's text supplies the floor debate itself, plus a second, later House proceeding testing the Clause's outer boundary — whether a government contractor counts as an "officer" at all.

Van Ness's own defense, House of Representatives, 17 Jan. 1803. Reporting on his own D.C.-militia major's commission, Mr. Van Ness did not deny holding the commission; he argued it fell outside the disqualification because the companion Ineligibility Clause — not this Clause — supplied the operative text, and that clause reaches only civil office:

"He thought the fair, liberal, and sound construction did not affect his case; that the incapacitating provision only applied to civil offices . . . he, therefore, felt a full conviction that it never was the intention of the framers of the Constitution of the United States to exclude militia officers from holding a seat in Congress." — Mr. Van Ness, House of Representatives, 17 Jan. 1803

Mr. Bacon answered by locating the operative bar not in the Ineligibility Clause's narrower "civil Office" language but in the Incompatibility Clause's own broader text, already quoted above ("Scope"):

"[T]hough the first part of the section of the Constitution referred to civil offices, yet the latter part used the expression any office, which was more comprehensive, and appeared to them to have been intended to have a universal effect." — Mr. Bacon, House of Representatives, 17 Jan. 1803

The House nonetheless "agreed to" the committee of elections' report "without a division" — seating Van Ness rather than declaring the seat vacant. See the correction to the Justiciability section below, which previously misstated this outcome.

The Contractors resolution, House of Representatives, 23 Mar. 1806 — is a government contractor an "officer"? Distinct from Van Ness's military-commission question, this debate tests the Clause's civilian boundary: does a private party who contracts to supply the government count as one "holding an[y] Office under the United States"? The House resolved that "a contractor, under the government of the United States, is an officer within the purview and meaning of the Constitution, and, as such, is incapable of holding a seat in this house." Mr. Eppes argued against the resolution, reading the Clause's text as excluding contractors by its plain, unextended words:

"The words of the Constitution are, 'No person holding an office under the United States shall be a member of either house during his continuance in office.' These words are plain and clear. Their obvious intention was, to have officers excluded, and officers only . . . We are not, however, to inquire what the Constitution ought to have been, but what it is. We cannot legislate on its spirit against the strict letter of the instrument." — Mr. Eppes, House of Representatives, 23 Mar. 1806

Eppes conceded the policy case for extending the bar to contractors was as strong as the case for officers — "It would certainly have been equally wise to have excluded contractors, because the reason for excluding officers applies to them with equal force" — while denying the House could reach that result by construction rather than amendment: "A man, for instance, makes a contract with government to furnish supplies. He certainly is not an officer, according to the common and known acceptation of that word." The House passed the resolution over Eppes's textual objection.

key-insight

Read together, Van Ness and the Contractors resolution show the Clause's "any Office" language being construed in opposite directions within three years by the same institution — broadly enough to seat a militia officer (the Ineligibility Clause's narrower "civil Office" text controlling instead) but broadly enough, three years later, to exclude a mere government contractor who held no commission at all. Neither outcome cleanly resolves the "how far does 'any Office' reach" question the military reserve section (below) still finds unsettled two centuries later; both are floor-level congressional self-construction rather than judicial holdings, consistent with OLC's own view that "exclusive responsibility for interpreting and enforcing the Incompatibility Clause rests with Congress."

Justiciability and enforcement

Like the Ineligibility Clause, the Incompatibility Clause has been largely removed from judicial enforcement by standing doctrine. In Schlesinger v. Reservists Committee to Stop the War (1974), the Supreme Court dismissed, on standing grounds, a challenge to Members of Congress holding reserve commissions. Neither citizens nor taxpayers had a concrete enough injury to sue. The Court left open whether a Reserve commission is an "office" under the Clause, and whether enforcement rests exclusively with Congress.

OLC has taken the view that "exclusive responsibility for interpreting and enforcing the Incompatibility Clause rests with Congress."

Congress has historically been the primary enforcer: it has considered, on a case-by-case floor vote, whether accepting an outside commission vacates a Member's seat.

contradiction

This page previously stated as "an early example" that "the Seventh Congress declared Representative John P. Van Ness's seat vacant after he accepted a commission as a major in the D.C. militia." Elliot's own transcript of the House's 17 Jan. 1803 floor debate (above, "The Van Ness case and the Contractors resolution") shows the opposite outcome: the House agreed to the committee of elections' report "without a division," seating Van Ness rather than vacating his seat, on the ground that the Ineligibility Clause's narrower "civil Office" language, not this Clause's broader "any Office" text, was the operative bar and did not reach a militia commission. The seat-vacated claim is not confirmed by this wiki's own primary source for the episode and is corrected here rather than repeated.

Military reserve question

A recurring, unresolved issue: whether Members may simultaneously serve in military reserve components.

• Early congressional practice: accepting a commission in the Army forfeited a Member's seat.
• 1916 House Judiciary Committee report: National Guard commission would vacate a Member's seat. Congress did not act.
• WWII Attorney General opinion: Members would forfeit seats if they entered armed forces by enlistment or commission, "should Congress choose to act." President urged not to commission Members.
• Recent practice: Congress has declined to take action against Members holding Reserve or National Guard commissions — possibly signaling acceptance.

United States v. Lane (2006): the Court of Appeals for the Armed Forces held that a Senator serving as an Air Force reserve officer could not participate as an appellate judge on a military court of criminal appeals — a clear Incompatibility Clause violation where the litigant had standing and the facts were unambiguous.