                                                         O ctober 18, 1977


77-59       MEMORANDUM OPINION FOR THE
            COUNSEL TO THE PRESIDENT

            Members of Congress Holding Reserve Commissions


   This responds to your request for our opinion respecting the matter
of Members of Congress holding commissions as officers in the Armed
Forces Reserves. The m atter originated in a letter from a Member of
Congress to the President. That letter requests the President to stop the
practice of allowing Members of Congress who hold reserve commis­
sions to receive pay, earn retirement credit, or advance in rank while
serving. The letter alluded to the implicit pressure on the Armed
Forces to prom ote these officers as a source o f impropriety, and stated
that the “provision of the Constitution preventing Congressmen from
holding any other office” has not yet been brought to bear on the
problem.
   W e have been informed that your principal concern is whether this
constitutional provision, th e Incompatibility Clause,1 requires the Presi­
dent to take action with respect to the reserve commissions currently
held by Members of Congress. It is our opinion that the exclusive
responsibility for interpreting and enforcing the Incompatibility Clause
rests w ith Congress.

                                        Background
  We are informed by the Departm ent of Defense that 25 Members of
Congress now hold commissions in the reserves: one in the Ready
Reserve, 11 in the Standby Reserve in active status, and 13 in the
Standby Reserve in inactive status.
  (a) Reserve officers below the rank o f lieutenant colonel or com­
m ander are appointed by the President alone; those above, with the
Senate’s advice and consent. All serve at the President’s pleasure.2
  (b) Members of the Ready Reserve are required to attend a minimum
amount o f annual training, for which they receive pay and retirement

 1 A rt. I, § 6, Cl. 2, quoted infra.
 * 10 U.S.C. § 593(aMb).

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credits.3 They may be called to active duty for up to 24 months during
a national emergency declared by the President.4
   (c) Members of the Standby Reserve on active status are not required
to attend training but may voluntarily do so for promotion and retire­
ment credits.5 They may be called to active duty in time of war or
national emergency declared by Congress if the Selective Service
System determines that they are available.6 Members on inactive status
do not train, do not receive either pay or pension credits, and are
ineligible for promotion.7
   (d) In addition to their other active duty obligations, members of the
Ready and Standby Reserves in active status may be ordered to active
duty for up to IS days per year at any time.8
   Current Department of Defense regulations require Members o f Con­
gress in the Ready Reserve to be transferred to the Standby Reserve.9
Once transferred, they may volunteer for active status in the Standby
Reserve.10 Members who were on inactive status when they entered
Congress apparently remain there. Thus, at least 12 Members o f Con­
gress are eligible to earn promotion and retirement credits by voluntary
participation in military training. The others who hold commissions
derive no formal benefits from them.
   One attempt was made to end this practice by litigation. In Reservists
Committee to Stop the War v. Laird, 323 F. Supp. 833 (D. D.C., 1971),
a ffd without opinion, 495 F. 2d 1075 (D.C. Cir. 1974), the District Court
held that a reserve commission was an office under the United States
within the meaning of the Incompatibility Clause and entered a declara­
tory judgment that a Member of Congress was ineligible to hold a
commission during his continuance in office. The Supreme Court re­
versed on the ground that plaintiffs, as members of the general public,
lacked standing to sue. It did not reach the merits. Schlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208, 216-27 (1975).

                   The Constitutional Provisions Involved
  Article I, § 6, Cl. 2, of the Constitution provides:
     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 Emolu­
   • See 10 U.S.C. §§ 1331-32; 37 U.S.C. §§ 204(aX2), 206(a).
   4 10 U.S.C. §§ 673(a), 674(a). Members o f the Ready Reserve may also be called to
active duty for the duration of any war or national emergency declared by Congress. 10
U.S.C. § 672(a).
   • 10 U.S.C. § 273(a); 32 CFR § 102.3(c); D O D Dir. 1215.6, para. V. C. 2.a.(4).
   • 10 U.S.C. §§ 672(a), 674(a).
   ’ See 10 U.S.C. § 273(c); 32 C FR § 136.3(b)(1); D O D Dir. 1215.6, para. V.C. 2.b.
   • 10 U.S.C. § 672(b). The statue does not apply to reserves on inactive status, but
Department of Defense regulations allow an inactive reservist to be restored to active
status and called up. See 32 CFR § 136.3(bX3).
   • 32 C FR § 125.4(cX2).
      32 C FR § 102.3(0.

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       ments 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.
    Article I, § 5, Cl. 1, provides:
       Each House shall be the Judge of the Elections, Returns and
       Qualifications of its own members.
    A rticle II, § 2, Cl. 2, provides:
      He [the President] shall nominate, and by and with the Advice and
      Consent of the Senate, shall appoint Ambassadors, other public
      Ministers and Consuls, Judges of the Supreme Court, and all other
      Officers of the United States, whose Appointments are not herein
      otherwise provided for, and which shall be established by Law; but
      the Congress may by Law vest the Appointment of such inferior
      Officers, as they think proper, in the President alone, in the Courts
      of Law, or in the Heads of Departments.

                                        Discussion
   It should be noted that the first portion of Article I, § 6, Cl. 2,
restricts the President’s pow er to appoint Members o f Congress to civil
offices, while the second portion of the clause declares that no person
w ho holds any office shall be a Member o f Congress while he or she
retains that office. It has long been settled within the executive branch
that the President, in exercising his powers of appointment under Arti­
cle II, § 2, Cl. 2, will not make an appointment in violation of the first
portion of the clause. See, e.g., 42 Op. Atty. Gen. No. 36; 17 Op. Atty.
Gen. 365 (1882). On the other hand, as far as we know, the President
has never undertaken to enforce the second portion of the clause,
which disqualifies individuals who have already been appointed from
assuming or retaining seats in Congress.11
   In* his brief to the Supreme Court in the Reservists Committee Case,
the Solicitor General argued that “ [b]y its terms, history, and long
Congressional construction, the clause constitutes a qualification for
membership in Congress— no one occupying such an office may serve
as a Senator or Representative. . . .” And, he continued, the determi­
nation o f w hether the clause is violated is “a determination which
under Article I, § 5, clause 1 of the Constitution, only the Congress can
make.” 12

   11 In 40 Op. A tty. Gen. 301 (1943), A ttorney General Biddle advised President Roose­
velt that the pow er to enforce A rt. I, § 6, Cl. 2, rested w ith Congress and that the House
o f Representatives had in the past disqualified Members w ho accepted military commis­
sions for active service. He concluded that it would be a “sound and reasonable policy”
for the President to avoid any possible conflict with the clause by not permitting
Members o f Congress to serve o n active duty. We do not know what action, if any, the
President took in response to the opinion.
   12 Brief for Petitioner at 8, O.T. 1973, No. 72-1188.

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  Moreover, we suggest that it would be undesirable for the President
himself to attempt to confront the problem. If he were to inform the
Congressman that in his view the holding o f reserve commissions by
Members of Congress did violate Article I, § 6, clause 2, that determi­
nation certainly would not bind the Congress. Conversely, if he stated
that the practice was permitted by the Constitution, Congress could
enforce the clause against its Members notwithstanding.13
                                                            L eon U lm an
                                         Deputy Assistant Attorney General
                                                        Office o f Legal Counsel




  “ The Solicitor General argued for the executive branch at length that a commission in
the Armed Forces reserves is not an “Office under the United States” within the meaning
of Article I, § 6, Clause 2. The details of the argument appear at pages 31-42 o f the brief.
As we have pointed out above, the Supreme Court did not reach the question.

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