by Jay Wexler
But have you ever noticed that nobody is ever both a bigwig official in the administration and an acting member of Congress at the same time? Have you ever wondered why that is? It’s not because nobody would gain from such an arrangement—presidents would be able to gain support for their programs by promising members of Congress plum positions; members of Congress would gain power and prestige; and the members’ constituents would have influence in not one but two branches of the government. It’s also not because no country has ever tried such a thing—several Western democracies, including England and Israel, have governments in which members of the legislature also exercise some forms of executive power. And it isn’t because nobody has ever proposed such an arrangement in the United States. Many influential thinkers and politicians—from Woodrow Wilson in the nineteenth century to former White House counsel Lloyd Cutler and a bevy of his followers in the twentieth century—have strongly urged that members of Congress be allowed to simultaneously hold office in presidential administrations.
The reason that nobody in the United States is ever both a member of Congress and an official in the executive branch is that the Constitution’s “incompatibility clause” flatly prohibits it. Concerned about the abuse and corruption that they saw in seventeenth-century England and in the early American colonies—both the king and the English administrators responsible for the colonies would basically bribe legislators to support their flawed policies with promises of high executive office—the framers of the Constitution made it one of their top priorities to ban dual office-holding. Some of the framers even wanted to ban members of Congress from ever becoming executive officers. James Madison, however, thought this went too far and proposed the incompatibility clause in its current form, which is why it was constitutional for Kemp, Gore, Cheney, and other members of Congress to assume top positions in the executive branch once they resigned from their legislative positions.
Well, except maybe for Hillary Clinton as secretary of state, but we’ll get to that.
As every American learns in grade school, the structure of the United States’ constitutional democracy is distinguished by its separation of powers. How exactly, though, does the Constitution create this structure? There is no separation-of-powers clause in the document. Indeed, the Constitution doesn’t use the phrase “separation of powers” at all. It doesn’t say anything that even remotely resembles “separation of powers.” It doesn’t say, for example, that “the powers shall remain separate,” or “separate the powers shall always be,” or “powers, you stay the hell away from each other,” or anything of the sort.
To understand the US system of separation of powers, it is critical to recognize that the Constitution—appropriately, given its name—constitutes the federal government. In other words, rather than limiting a government that already exists, the document actually creates the federal government out of nothing. Specifically, the first three articles of the Constitution create the three branches of government: Article I creates the Congress and gives it certain enumerated legislative powers (discussed in chapter 2). Article II creates the office of president and gives it the “executive power” (discussed in chapter 3). And Article III creates the federal judicial system and gives it the “judicial power” (discussed in chapter 4). None of the branches possesses any power from any source other than the Constitution. This means that for any branch of government to act, it has to find authorization for that action somewhere in the Constitution.
In addition to doling out powers to each branch, the Constitution sets out the procedures that the federal government must follow when carrying out certain important actions, like appointing top officials or impeaching officials gone bad or passing laws. For many of these actions, the Constitution will give specific roles to more than one branch, so that no single branch can do anything all by itself. Thus, for example, the Constitution gives the president the authority to nominate principal officers like cabinet members or federal judges, but the nominations are subject to Senate confirmation. The Congress can pass bills, but a bill cannot become law until the president signs it (unless a supermajority of both congressional houses overrides the president’s veto). The Senate holds a hearing on whether to impeach the president, but the chief justice of the Supreme Court presides over the hearing. The Congress and the president make policy for the government, but the judicial branch can determine if the actions of the other two branches are unconstitutional (this power, that of “judicial review,” is not super explicit in the Constitution, but the Supreme Court announced it early on, and it’s existed ever since). In each of these cases, one of the three branches has the power to check the action of another branch, thus keeping the power of all three branches in a state of balance. Thus the proverbial “checks and balances,” another phrase that does not appear in the Constitution itself.
In addition to checks and balances, however, the notion of separation of powers includes the more abstract idea that, by creating three different branches, each with its own enumerated powers, the Constitution implicitly provides that those specific powers belong primarily, if not exclusively, to the branch to which they are assigned and not to any other branch. So, for instance, as we’ll see in greater detail in chapter 3, Article II of the Constitution gives the “executive power” to the president. Presumably, then, only presidents (and those to whom they delegate their power) should be able to exercise this executive power, whatever that power might include. Moreover, presidents could plausibly argue that since the executive power belongs to them and them alone, other branches should not be able to infringe upon their exercise of that power, except if the Constitution explicitly allows for such a check, as for example it does when it gives the Senate the power to veto top presidential appointments.
This might seem straightforward, but in practice it gets messy. Part of the problem is that it’s not always clear what actually counts as “legislative power” or “executive power” or “judicial power.” If the Environmental Protection Agency makes a rule limiting the amount of sulfur dioxide that light trucks can emit per mile traveled, or the Federal Communications Commission bans celebrities from saying dirty words like “shit” or “shitbag” on television, are those legislative actions or executive ones? If the agency then fines a company or celebrity for breaking its rule, and then rejects an appeal of the fine, is that an executive decision or a judicial one? Yes, the EPA is controlled by the president, and the president appoints the heads of the FCC, but the rules sure seem like the kind of general laws that we expect from legislatures, and deciding appeals sure seems judicial, doesn’t it? It should also come as no surprise, given human nature, that the various branches might try to take a little bit of extra power for themselves if they figure they can get away with it. As a result, the federal government is riddled with examples of practices that are arguably inconsistent with the notion of separate powers. For instance: presidents have employed troops for military purposes countless times in the absence of congressional authorization. Congress has passed hundreds of laws dictating that the president can only appoint various high officials if they possess certain qualifications (a PhD in botany, for instance, or a certain political party affiliation). Courts set out rules—like the one from Miranda v. Arizona telling the police exactly what they have to tell suspects in custody—that seem almost like legislative ones. Some of these arrangements are at least arguably inconsistent with the kind of government the framers thought they had created.
From time to time, disputes involving these arrangements have made it to the Supreme Court, which unfortunately has not provided a whole lot of clarity about what’s constitutional and what isn’t. Sometimes—like in the 1926 case of Myers v. United States, where the Court held that Congress could not give the Senate the right to veto the president’s firing of an executive postmaster—the Court has been strict in policing the branches. Other times, as in the 1988 case of Morrison v. Olson, when seven justices approved of a statute creating the position of ind
ependent counsel—basically a prosecutor appointed by a special court, who is not controlled by anyone inside the executive branch—the Court has been more lenient. As a result of this lenience, the nation was treated a decade later to Kenneth Starr’s $40 million witch hunt of President Bill Clinton. When one of these separation-of-powers cases comes before the Court, it’s basically anybody’s guess what’s going to happen. Most of the time, though, the Court has been willing to tolerate at least some interbranch infringement or intermingling, much to the chagrin of some of the so-called formalists on the bench and elsewhere (Clarence Thomas?) who think that the entire modern federal government is unconstitutional.
Although the framers were vague about a lot of this separation-of-powers stuff, they did fear a couple of practices so much that they decided to explicitly forbid them. Article I, Section 6, of the Constitution contains several of these prohibitions. That section, for example, says that members of the House and Senate may generally not be arrested when going to and from the Congress. It also says that these legislators may “not be questioned in any other place” for any “speech or debate” made in either the House or the Senate. The so-called ineligibility clause (which I’ll say more about later) prohibits members of Congress from being appointed to any “civil Office” that was created or had its salary increased during the time the member of Congress was serving as a senator or representative. And then there is the most important of these separation-of-powers-fueled explicit prohibitions—the incompatibility clause of Article I, Section 6, which bars people like Jack Kemp and Lloyd Bentsen and John Ashcroft from remaining members of Congress after ascending to executive office: No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Did we need the incompatibility clause to prevent people from holding offices in both branches at the same time? A strong argument could be made that the Constitution’s vague separation-of-powers provisions are themselves sufficient to prohibit dual-office holding, but it is simply impossible to know if the Supreme Court would have seen it that way. In any event, the framers were not willing to take any chances. They had seen the English kings bribe members of Parliament with plum executive positions, turning the legislature of that country into a steaming cesspool of corruption. They had seen the colonial governors do the same thing in the new country, filling the highest seats in the land with “bankrupts, bullies, and blockheads.” For most of the framers of the Constitution, the idea that a member of Congress could simultaneously serve as an executive official was so horrifying that they weren’t about to leave the possibility up to the vicissitudes of the courts. They decided to outlaw the practice right there in the Constitution itself.
No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. The incompatibility clause, then, is a rare example of an explicit constitutional prohibition that was intended to further the framers’ vision of a government with separated powers. Later, I will come back to the question of whether a government with separate powers is really a good thing. First, though, a few words about what exactly the incompatibility clause prohibits.
According to the clause, if you are a member of Congress, then you cannot at the same time also be a “Person holding any Office under the United States.” Usually, the meaning of this phrase is pretty self-explanatory. Cabinet members, for example, hold offices under the United States. So do federal judges. Many important positions in the executive branch that don’t quite make it to cabinet level are also covered by the clause. The undersecretary of agriculture for vegetables would be covered, for example, if there were such a thing. The Supreme Court has said, in other contexts, that “officers” are those government employees who exercise “significant governmental authority” and whose tenure, duties, and salary are set by statute. This covers a lot of top government employees, but not all of them. Your typical line attorney or policy wonk or maintenance worker probably does not “hold an office under the United States.” If Senator John Kerry wanted to take a job as a dessert chef in the Department of Transportation’s employee cafeteria, for instance, and if his pastry-making skills were good enough to land him the job, nothing in the Constitution would stand in his way.
What about the president, though? Could a senator who wins the presidential election choose to remain a senator even after taking the presidential oath of office? Nobody has ever tried it, but some of the top legal scholars in the country have spent a lot of time arguing about the question. The main instigator of this debate is Seth Barrett Tillman, who is not himself a professor (at the time of this writing) but who has written more journal articles than most law professors will ever write in their lifetimes. Tillman is a master at parsing the precise wording of various odd constitutional clauses and coming up with ingenious and often counterintuitive arguments about their meaning. In a series of articles published in the journals of top law schools, he has compellingly (though by no means conclusively) argued that the president “presides over” the executive branch rather than being an officer in it, and therefore cannot be described as “holding an office under the United States,” which is what the incompatibility clause actually says. In response, a leading constitutional scholar named Sai Prakash from the University of Virginia’s School of Law has argued that the president “occupies an office under the United States because he occupies an office created under the authority of the United States.”
From time to time, the issue of whether someone is an “officer” does find its way to some court. Indeed, the question once made it as far as the highest court in the land. Back in the early 1970s, an association of military reserve officers opposed to the Vietnam War sued more than one hundred members of Congress who were also reservists in the armed forces. The question under the incompatibility clause was whether somebody who held a commission in the military reserves was holding an “office under the United States.” The federal trial judge who heard the case held that a reservist position was an office and enjoined the members of Congress from continuing to hold commissions in the reserves. Among other things, the judge thought that, “given the enormous involvement of Congress in matters affecting the military, the potential conflict between an office in the military and an office in Congress is not inconsequential.” An appellate court agreed with the trial judge, and then the Supreme Court took the case to resolve the issue.
Despite the importance of the question, however, the Court never answered it. Instead, it dismissed the suit for lack of “standing.” The legal doctrine of standing has to do with whether a court thinks a particular plaintiff has suffered a concrete-enough injury to justify letting it bring the action. If this book were about “The Most Depressing Legal Doctrines” instead of “The Odd Clauses,” then there might be an entire chapter in here about this “standing” thing. Luckily for you, however, it isn’t. Suffice to say that before the Supreme Court will let somebody sue the government, it must be convinced that the plaintiff has experienced a very particular, superspecific, nonabstract, actual injury from the government’s actions. In separation-of-powers challenges, where the argument is often just that the government is generally not following the requirements of the Constitution, it can be hard for the plaintiff to satisfy the Court’s stringent standing requirements. As the Court put it in the reservist case: “[S]tanding to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” Nor was the Court moved by the fact that if these plaintiffs couldn’t sue, probably nobody could sue. “The assumption that if respondents have no standing to sue, no one would have standing,” the Court empathetically remarked, “is not a reason to find standing.” As a result of the Court’s stingy standing doctrine, a lot of fundamental separation-of-powers issues remain surprisingly unresolved to this day.
Here’s a question that sort of mirrors
the old “If a tree falls in the forest and nobody hears the tree fall in the forest, has a tree really fallen in the forest?” bit: If a tree that works for the federal government thinks that something it is about to do is unconstitutional, but knows that no court is likely to ever order it not to do it, maybe because of a really depressing legal doctrine like standing, can the tree go ahead and do it anyway? The answer is no, and not just because trees can’t work for the government. Government officials, regardless of what branch they serve in (that’s a pun), all take an oath to uphold the Constitution. They are therefore obligated to act consistently with the Constitution’s requirements. Of course, an executive official or a member of Congress might knowingly do something unconstitutional and still end up not getting in trouble or being fired because of it, but that doesn’t mean the action was any more legal or legitimate than robbing a bank and not getting caught.
It is gratifying that in the United States, both the legislative and executive branches have offices whose duties involve advising members of those branches on whether something they want to do is legal, regardless of what, if anything, a court might have to say about the issue later. In the executive branch, the office that performs this function is the Office of Legal Counsel. Unlike the courts, the OLC writes opinions about separation-of-powers issues all the time. At the beginning of the Obama administration, the office was asked to consider whether Hillary Clinton’s appointment to be secretary of state violated the Constitution’s separation-of-powers commands. The potential problem with her appointment has to do with the ineligibility clause, mentioned earlier. This clause, which immediately precedes the incompatibility clause in Article 1, Section 6, and is often lumped together with it, says the following: “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.” In other words, no member of Congress can take an office if that office was created, or its salary was increased, while the member was sitting in the legislature. Putting the incompatibility and ineligibility clauses together, then, a member of Congress can never serve as an executive official at the same time that she is also sitting in Congress, and she cannot quit her position in Congress to take an executive office if that office was created, or its salary was increased, while the member had been sitting in Congress.
