Notice & Comment

The Incompatibility Clause and a Recent Rulemaking

Yesterday saw a fight over the Department of Defense’s proposed rule that would protect military families from predatory lending. The proposed regulation seeks to implement the Military Lending Act, which caps interest rates on loans to service members, by closing loopholes that have allow finance companies to continue offering high-interest loans to enlisted personnel. A number of GOP members of the House Armed Services Committee sought to block the rule through the National Defense Authorization Act―which, as its name suggests, addresses all sorts of major military issues. The proposed legislation before the Committee had a provision that would have effectively prohibited the Department from implementing its rule for a year. The delay could have been the death of the rule because a year from now everything will be on hold for the Presidential election.

The Armed Services Committee ended up passing the NDAA without this limitation. But the episode peripherally brought up an old but interesting constitutional issue about members of agencies serving in Congress.

The chair of the subcommittee that produced the provision is Congressman Joe Heck. He represents Nevada’s 3d District. He also is a Brigadier General in the Army reserve. That seems like a problem under the Incompatibility Clause of the Constitution, which says that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” A brigadier general is an officer of the United States, so Congressman Heck probably should not be able to be a member of Congress so long as he holds that position.

But no one is likely to do anything about this constitutional problem. The residents of Nevada’s 3d don’t have any incentive to elect someone else so long as Congressman Heck keeps doing things they like (which presumably he is since they keep reelecting him). The DOD could discharge him (or deploy him), but it probably doesn’t want to annoy a sitting member of Congress, much less a member of the Armed Services Committee. The other members of Congress have no reason to oust him; their constituents probably do not know (and probably would not care if they did know) about Congressman Heck’s status.

In all likelihood, the only people who might want to do anything about Congressman Heck’s status are activists who could file suit. But they don’t have standing under Schlesinger v. Reservists Committee to Stop the War. There, activists sued to remove a member of Congress from the military reserves based on the Incompatibility Clause. The Court held that they lacked standing. It said that, to have standing, one must have suffered an injury in fact, and the only injury the plaintiffs had suffered―the commonly held interest in assuring the independence of the branches of government―was too abstract and generalized to support standing. I don’t see the Court overturning this doctrine anytime soon, and for good reason. Finding standing could bring the courts into conflict with the military over personnel decisions, could bring the courts into conflict with Congress over its members status, and could undermine federalism by allowing citizens from one state to have some control over the congressmen in other states.

That there is no one to enforce the Clause does not mean we should ignore it. The reason for the Incompatibility Clause is to preserve the independence of the branches of government. A congressman who is also in the military may make decisions that unduly benefit the military at the expense of other programs; likewise, the military might feel pressure to promote that congressman. There might be, in Alexander Hamilton’s words, a “few choice spirits” who “act from worthy motives,” but most are susceptible to ambition, and the Clause helps check it.

I know very little about Congressman Heck; for all I know, he is among the “few choice spirits.” Indeed, in this case, he took a position that arguably disadvantages many other people in the military. But that Clause is written for the many, not the few. The reasons why no one is likely to enforce the Clause against Congressman Heck are likely to apply to other members of Congress in similar situations. There should be some mechanism to enforce the Clause. An initial thought is that perhaps there should be a federal law that automatically discharges from the military an individual upon assuming a seat in Congress.