Incompatibility Clause Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Article I, Section 6, Clause 2

The Constitution establishes several limitations on a person's ability to serve in Congress. For example, Article I, Sections 2 and 3, limit the class of persons eligible to serve in Congress by imposing age, citizenship, and residency requirements. The Incompatibility Clause of Article I, Section 6, imposes a further limitation: it forbids federal executive and judicial officers from simultaneously serving in Congress.

The Framers of the Constitution understood the Incompatibility Clause primarily as an anticorruption device. Painfully familiar with the system of "royal influence," whereby the English kings had "purchased" the loyalty of Members of Parliament with appointment to lucrative offices, the Framers sought to limit the corrupting effect of patronage and plural office holding in the new Republic. Drawing on examples provided by the bans on plural office holding contained in contemporaneous state constitutions, and in the Articles of Confederation, the Framers crafted a ban on dual office holding, which Alexander Hamilton described in The Federalist No. 76 as "an important guard against the danger of executive influence upon the legislative body."

It is easy, in modern times, to underestimate the importance of the Incompatibility Clause. There has been virtually no litigation involving its meaning. In Schlesinger v. Reservists Committee to Stop the War (1974), the Supreme Court held that citizens who had filed a civil action to challenge the reserve membership of some Members of Congress were asserting only a "generalized grievance about the conduct of government," and thus lacked standing to sue. That is not to say that the Incompatibility Clause would be judicially unenforceable if it were violated, for example, if a sitting Member of Congress who was also an Officer of the United States took official action that adversely affected an individualized private interest. But such cases rarely, if ever, arise, perhaps because the rule the clause announces is relatively straightforward.

The Incompatibility Clause nonetheless serves a vital function in the American system of separated powers. By preventing joint legislative and executive office holding, the clause forecloses any possibility of parliamentary government in America, and thus preserves a hallmark of American constitutional government: the independence of the executive and the Congress.

Beyond this vital structural function, what is perhaps most interesting about the clause is what it does not, by its terms, prohibit. Neither the clause itself nor any other constitutional provision expressly prohibits joint service in the federal executive and judiciary, or joint service in federal and state office. The latter issue is largely handled as a matter of state constitutional law, which generally forbids most forms of dual federal–state office holding. As for the question of simultaneous service in federal executive and judicial offices, the constitutionality of the practice is suggested not only by the lack of a textual prohibition, but by a few prominent examples of such service in the early days of the Republic, such the simultaneous service of Chief Justices John Marshall, John Jay, and Oliver Ellsworth in judicial and executive posts. Nonetheless, examples of joint service in the executive and the judiciary have been a rarity in American history, and a strong tradition has developed disfavoring the practice. Moreover, some might argue that generalized notions of the separation of powers, such as those expressed by the Supreme Court in Mistretta v. United States (1989), render the practice constitutionally suspect.

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Joan L. Larsen
Counsel to the Associate Dean for Student and Graduate Activities
University of Michigan Law School