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Monday, October 03, 2011

Hello, and Has Scott Brown Violated the Constitution?

Hello.  First I'd like to say that it's just absolutely prawftastic to be back here blogging on PrawfsBlawg.  I love PrawfsBlawg!!


Anyway, for the past two years or so, I've spent a lot of my time writing a book about some of the lesser-known clauses of the Constitution called "The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions."  I came up with the idea for the book about a decade ago when I was working at OLC, where much of the work has to do with parts of the Constitution that don't really come up in law school.  The book will be published by Beacon Press on November 1st. 

In connection with the book, I launched a new blog a few months ago called Odd Clauses Watch, where I post items that I come across having anything to do with any lesser-known clause (not just the ten that I write about in the book).  In a future post, I'll say something about what makes a clause "odd" for me, which is not necessarily what would make it odd for somebody else, but at least on the blog, I have a pretty broad view of what counts as odd.  In addition to posting on things that I find for sale like third amendment t-shirts and books for children about the seventh amendment or the letters of marque and reprisal clause, I also link to articles--scholarly and otherwise--and occasionally engage in analysis of some odd-clause-related issue like whether it was constitutionally legitimate for the Queen to knight Mater at the end of Cars 2.

Most recently, I raised the question of whether Senator Scott Brown, by continuing to serve in the National Guard as a JAG lawyer, has been violating the Incompatibility Clause of Article I, section 6, which prohibits members of Congress from "holding any Office under the United States."  This clause, which is the subject of the first chapter of my book, began as an anti-corruption provision (kings used to promise members of parliament plum executive positions to support their legislative agendas) and is now a key separation of powers provision.  Instead of researching the issue myself, I asked Seth Barrett Tillman, one of the premier experts on many of the Constitution's odd clauses, what he thought of the matter, and he told me that "today . . . there is an incompatibility between being a Senator/Representative and a commissioned officer in the National Guard."   His analysis--as well as the rest of my original post--is here, if you're interested.

Shockingly, however, the post has not resulted in Senator Brown's resigning either of his positions.  I'm looking forward to posting about other odd clauses, and lots of other issues as well, over the next bunch of weeks.  

Posted by Jay Wexler on October 3, 2011 at 02:49 PM in Constitutional thoughts, Jay Wexler | Permalink


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I agree that, in this scenario, the Mass Gov would have standing, but his suit would almost certainly be barred by the political question doctrine. The Senate's refusal to seat the new Senator is surely within its constitutional powers, and, after Nixon v. United States, federal courts would presumably view the issue as one committed to the Senate to judge.

Posted by: Norman Williams | Oct 4, 2011 12:05:47 PM

But the constitution reserves to the states the authority to appoint officers of the militia (talk about little-known)

Posted by: jt | Oct 4, 2011 9:40:47 AM

Then would that not be the situation required to create a party with standing. The Senate's refusal to seat the Senator elected as a result of the special election called by the Mass Gov and certified by the Commonwealth. The Mass Gov and certifying official(s) would be the plaintiffs suffering an injury.

Constitutionally speaking, while the Senator is elected popularly, he or she serves as a representative of the state and its interests. Thus it seems that the governor and officials certifying the Senator's election should warrant treatment as injured parties with standing.

Posted by: Adam | Oct 4, 2011 1:18:33 AM


Great post. This illustrates what many people often forget -- that many provisions of the Constitution never are litigated (and Supreme Court decisions therefore never ensue) because lawsuits are unlikely to arise. Does a voter have standing to sue Sen. Brown, for instance? I tend to think not because the injury suffered by any voter is shared by all voters and is therefore "undifferentiated" in the Richardson parlance.

As to the merits of the question, is a position in the National Guard an "office" of the United States or rather one (despite its title) in the state militia? Given the origin of the NG, one might treat it as the latter (at least when not federalized by the President). And, assuming an incompatibility problem, what's the remedy? Could the Massachusetts Governor declare a vacancy in the office of U.S. Senator and order a new special election to fill the post? What if the Senate refused to seat the newly elected replacement (on the ground that there was no vacancy because there was no incompatibility problem with Sen. Brown in the first place)?

Posted by: Norman Williams | Oct 3, 2011 9:45:06 PM

There is case law on this issue. In 2006 the U.S. Court of Appeals for the Armed Forces confronted the question of whether Sen. Lindsey Graham, who was a member of the Air Force Reserves, could serve as an appellate judge on a military court during his reserve service. The USCAAF held that he could not, due to the incompatibility clause. The case is U.S. v. Lane, 64 M.J. 1 (2006).

Posted by: Robin Effron | Oct 3, 2011 3:08:05 PM

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