by Steven G. Calabresi

Clayton J. And Henry R. Barber Professor of legislation at Northwestern University"s Pritzker institution of Law


Article I, section 6 has several clauses of an excellent significance. It begins by specifying the Senators and also Representatives shall be paid the end of the Treasury of the united States and not through the claims they represent as had actually been the exercise under the short articles of Confederation. This emphasizes the fact that Senators and also Representatives are police officers of the federal government and not the the state wherein they to be elected.

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Article I, ar 6 likewise says the Senators and also Representatives shall no be wondered about in court or through the chairman for any kind of speech or controversy they provide or take part in top top the floor the the Senate or the House. This assures ample liberty of dispute in Congress.

Article I, section 6 provides in addition that Senators and Representatives can not be appointed to offices the incomes of which had been increased throughout the time the their organization in Congress. This Ineligibility clause is a an easy ethics rule avoiding Members of conference from enhancing the salary of an executive office and then soliciting the president to appoint them to the office therefore they can advantage from the salary rise they had voted for.

An exciting question increased by this i is even if it is a senator or Representative that was offer in Congress when the salary of an executive, management office was raised might be appointed to that office if the value of the office is subsequently decreased to its original level. This scenario has arisen several time in reasonably recent history. The an initial time it come up, the inquiry was even if it is President Richard Nixon might appoint Senator william Saxbe to be his lawyer General, even though Congress had actually raised the office’s value while Saxbe to be a city council (after the salary to be rolled earlier to its initial level, Saxbe did in fact take office). The so-called “Saxbe fix” came up again in 1987, when President Ronald Reagan to be considering even if it is he might appoint councilor Orrin hatch to the supreme Court also though the Justices’ salaries had been increased while Hatch to be a Senator. In that instance, the Office of legitimate Counsel in ~ the room of Justice authorize an opinion declaring that the Saxbe resolve would no render the appointment constitutional. An ext recently, however, the very same office in ~ the justice Department got to the the opposite conclusion, for this reason clearing the way for chairman Barack Obama to choose Hillary Clinton to be the Secretary that State despite the truth that the Secretary’s salary had actually been increased during Clinton’s tenure in the Senate. See Justice room Memorandums for the Attorneys General.

Finally, and also most importantly, post I, ar 6 offers that “no human holding any kind of office under the joined States, shall it is in a member of either House throughout his keep going in office.” This supplication is of profound structural importance since it stays clear of the meeting of powerful Senators or Congressmen to the President’s Cabinet for this reason reinforcing the separation the legislative and executive power. Lacking this Incompatibility Clause, the is quite most likely that an effective Senators and also Representatives would demand that they it is in appointed come the Cabinet, and the President would certainly likely have to acquiesce. This would develop a kind of parliamentary federal government in i m sorry the President was independent yet all the good officers of state were Congressmen. Thanks to the Incompatibility Clause, the U.S. Has actually a separation of strength and a separation the personnel. The same human being cannot concurrently exercise legislative and also executive (or judicial) power. Members the Congress room barred indigenous holding executive branch or justice offices. For further conversation of this Clause, see Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of strength or Separation that Personnel?, 79 Cornell L. Rev. 1045-1157 (1994); Jay Wexler, The weird Clauses: understanding the Constitution with Ten of its many Curious Provisions, ch.1 (2012).

Occasionally, the concern arises—what counts as an “office under the joined States”? It has actually been said by one scholar, for instance, the the office of president is not such an office because the chairman presides over the executive branch fairly than gift an officer in ~ it. If this scholar were best (and neither of united state think that he is), then it would follow the the speaker of the house of Representatives and President agree Tempore that the Senate might serve together President there is no violating the Incompatibility Clause. And what around members of the national Guard or armed forces reserve officers? can a member that Congress simultaneously serve in the reserves? In the 1970s, a commonwealth court challenged with this question organized that together an setup violated the Incompatibility Clause, but the supreme Court ultimately dismissed the case on grounds the the plaintiffs short standing come raise the question. The issue, therefore, continues to be unresolved. See Schlesinger v. Reservists to protect against the War (1974).

The Framers added the Incompatibility i to the Constitution as a constitutional ethics rule, and also no one in ~ the establishing foresaw the profound structural effects it would have on American government. Eighteenth century brother Monarchs had bribed their way to manage over the home of Commons by offering Members of the House financially rewarding executive offices to for sure the Members’ votes on issues important to the King. The Framers that the U.S. Constitution to be repulsed by this behavior, and also so they added the Incompatibility i to the Constitution as an ethics rule to prevent such corruption in the united States. An unintended an effect of the Framers’ incompatibility ethics dominion was that it empowered the President greatly by making that unconstitutional for an effective Members of congress to need Cabinet appointments.

There is no Incompatibility i for executive and also judicial officers, and there is for this reason a long background of judges holding executive, management branch as well as judicial offices. Cook Justice john Jay thus negotiated a peace treaty with good Britain together an ambassador; chief Justice man Marshall served simultaneously together Secretary the State and as cook Justice in February 1801; righteousness Robert Jackson to be the chief Allied Prosecutor of the Nazis at the Nuremberg Trials; and also Chief justice Earl Warren served as the head the an executive, management branch Commission—the Warren Commission—which investigated who had actually been affiliated in the assassination that President john F. Kennedy. The American Bar combination frowns on together joint judicial and also executive branch office-holding for obvious ethical reasons, and also no recent Justice has held any kind of executive branch office.

There is likewise no commonwealth constitutional Incompatibility clause forbidding the share holding that federal and of state offices. Numerous state constitutions, however, do forbid this. Most modern-day constitutions have strict Incompatibility Clauses based upon a judicious One Person, One Office principle.

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The Incompatibility i of article I, section 6 may be under inclusive, yet it is perhaps the foremost factor why the U.S. Never emerged a parliamentary mechanism of government. Since Members the Congress are forbidden native holding executive, management offices, they have instead set up a very an effective congressional committee system, i beg your pardon shadows each presidential cabinet department. The Senate and also House foreign Affairs Committees thus shadow the State Department just as the Senate and also House Judiciary Committees shadow the justice Department. The congressional committee device is the stunted development of a parliamentary government in the united States, which cannot take end the executive Branch because the Incompatibility Clause avoids Congressional Committee Chairmen indigenous demanding cabinet appointments. Accordingly, the Incompatibility Clause promises an independent executive branch top up by the President, and it is just one of the most important, also if unnoticed, rule in the Constitution.