Constitution of the United States/Art. I/Sec. 6/Clause 2 Bar on Holding Federal Office

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 6 Rights and Disabilities

Clause 2 Bar on Holding Federal Office

Clause Text
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 Emoluments whereof shall have been encreased 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.

Overview of Federal Office Prohibition[edit | edit source]

The second clause of Article I, Section 6 contains two provisions disqualifying Members of Congress from holding other federal offices, such as those in the Executive or Judicial Branches of government. The first provision is generally known as the Ineligibility Clause,[1] and precludes Members from being appointed to federal civil offices that were created (or had their compensation increased) during their congressional term for the length of their elected term. The second provision, often called the Incompatibility Clause,[2] forbids a Member from simultaneously holding "any Office under the United States."

The essential distinction between the Ineligibility and Incompatibility Clauses is one of timing.[3] The Incompatibility Clause forbids only concurrent officeholding, so incompatibility violations can generally be prevented by resigning either the other federal office or one's seat in Congress.[4] In contrast, the Ineligibility Clause forbids appointment to a federal office that was created or had its compensation increased during a Member's elected term for the length of that term; it thus may apply even if the Member is willing to resign his or her seat in Congress to take the other office.[5]

Both Clauses seek to prevent corruption and ensure the separation of powers between the federal executive and Legislative Branches of government.[6] As Justice Antonin Scalia explained:

The Framers' experience with post revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. The foremost danger was that legislators would create offices with the expectancy of occupying them themselves. This was guarded against by the Incompatibility and Ineligibility Clauses.Freytag v. Comm'r, 501 U.S. 868, 904 (1991) (Scalia, J., dissenting) (citations omitted).

Edmond Randolph introduced what became the Ineligibility and Incompatibility Clauses at the Constitutional Convention as part of the resolutions of the Virginia Plan.[7] The original proposed language would have prohibited Members of Congress from holding any state or federal office during their elected term and for a period of time thereafter,[8] later set at one year.[9] The scope of Members' eligibility for other offices was debated during the Convention.[10] Some delegates favored stricter ineligibility rules to prevent corruption,[11] while others wished to limit the provision to forbid only concurrent officeholding (i.e., incompatibility) so as not to render worthy Members ineligible for Executive office.[12]

Early in the Convention, Nathaniel Gorham moved to strike the Ineligibility Clause, which--after a debate that revealed the Framers' divergent views on this issue--failed by an equally divided vote.[13] James Madison then proposed a "middle ground" provision, which would limit ineligibility of Members only to federal offices that were created, or had their emoluments increased, during the Members' term.[14] Madison's compromise failed to be approved by the Convention when first proposed.[15] Charles Pinckney, who had earlier successfully moved to limit the Ineligibility and Incompatibility Clauses to only federal (and not state) offices,[16] moved to limit the provision to forbid only concurrent officeholding, but failed in that effort.[17]

Late in the Convention, after another failed motion by Pinckney to remove the ineligibility provision,[18] the substance of Madison's compromise was re-introduced and was narrowly passed by the Convention.[19] With some stylistic changes, the Ineligibility and Incompatibility Clauses were incorporated into the Constitution.[20]

Ineligibility Clause (Emoluments or Sinecure Clause) and Congress[edit | edit source]

The Ineligibility Clause prohibits a Member of Congress from being appointed to a federal civil office that was created, or had its compensation increased, during the Member's elected term. The main intent of this provision is to prevent "legislative corruption" whereby Members vote to create or increase the remuneration of an office that they expect to occupy themselves.[21] Appointments to such offices are restricted only "during the Time for which [the Member] was elected."[22] A former Member may, for example, be appointed to a federal judgeship created during his term, so long as appointment is not made until after the expiration of that term.[23] For this reason, as Justice Joseph Story observed, the Clause "does not go to the extent of [its anti-corruption] principle" because a Member may still be influenced by the possibility of holding another office "if the period of his election is short, or the duration of it is approaching its natural termination."[24]

Because of standing and other justiciability requirements, courts have only rarely addressed the Ineligibility Clause.[25] In Ex parte Levitt, the Supreme Court ruled on a motion challenging the appointment of Justice Hugo Black, who was a U.S. Senator immediately prior to his appointment and confirmation to the Court in 1937.[26] Justice Black was alleged to be constitutionally ineligible for that office because Congress had, during Black's current Senate term, created a new option that allowed Supreme Court Justices to retire and receive a pension.[27] Finding that the movant lacked any direct injury from Justice Black's appointment beyond "a general interest common to all members of the public," the Court summarily dismissed the case on standing grounds.[28] In another notable decision, the U.S. District Court for the District of Columbia dismissed, for lack of standing, an Ineligibility Clause challenge to then-Senator Hillary Clinton's appointment as Secretary of State because the salary of that office was increased (but then subsequently decreased) during her Senate term.[29]

As the courts have largely declined to rule on Ineligibility Clause disputes, Presidents have sought legal opinions from the Department of Justice--through the Attorney General or the Office of Legal Counsel (OLC)--to determine whether particular appointments would accord with the Ineligibility Clause. For example, OLC has opined that when a statute provides for the "possibility of a future salary increase" (such as an annual adjustment) during a Member's term--but no increase has yet occurred--the Ineligibility Clause does not bar the Member's appointment to that office.[30] Other OLC opinions have found no Ineligibility Clause violation when the President is free to set a salary after the appointment is made[31] or when an office is created by the President after the expiration of a Member's term (even if the nomination occurred prior to the end of that term).[32]

One area of conflicting opinions on the scope of the Ineligibility Clause concerns the so-called "Saxbe fix."[33] Under this procedure, Congress reduces (or "rolls back") the salary of a particular office to the level it was at the beginning of a Member of Congress's term, seeking to avoid an Ineligibility Clause violation and enable the appointment of the Member to that office.[34] For example, in 1973, President Richard Nixon wished to appoint Senator William Saxbe to be his Attorney General.[35] However, during Saxbe's current Senate term, Congress voted to increase the Attorney General's salary from $35,000 to $60,000.[36] Seeking to comply with the Ineligibility Clause, Congress voted to roll back the Attorney General's salary to $35,000 before the Senate confirmed Saxbe as Attorney General.[37] Although there have been conflicting views within the Executive Branch as to whether such rollbacks actually cure the constitutional problem, recent OLC opinions have concluded that the Saxbe fix complies with the Ineligibility Clause.[38]

Incompatibility Clause and Congress[edit | edit source]

The Incompatibility Clause forbids Members of Congress from simultaneously holding another federal office.[39] The Clause is thus broader than the Ineligibility Clause in some ways, but narrower in others. It is broader in that its prohibition applies to "any Office under the United States," and not just civil offices that were created or had their compensation increased during the Member's term.[40] But the Clause is narrower in that it only prohibits concurrent office-holding: a Member may generally avoid an Incompatibility Clause violation by resigning his or her seat in Congress to accept appointment to the other federal office (or vice versa).[41] As Justice Byron White explained:

[U]nder the [Ineligibility and Incompatibility Clauses], Congressmen were disqualified from being appointed only to those offices which were created, or for which the emoluments were increased, during their term of office. Offices not in this category could be filled by Representatives or Senators, but only upon resignation.Buckley v. Valeo, 424 U.S. 1, 272-73 (1976) (White, J. dissenting), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.

Like the Ineligibility Clause, courts have largely declined to adjudicate Ineligibility Clause suits based on standing and other justiciability issues. In Schlesinger v. Reservists Committee to Stop the War, the Supreme Court rejected, on standing grounds, an Incompatibility Clause challenge to certain Members of Congress's holding of commissions in reserve components of the U.S. Armed Forces.[42] The Court, relying on Ex parte Levitt, held that the plaintiffs lacked a concrete injury as either citizens or taxpayers to sue for the alleged Incompatibility Clause violation.[43] The Supreme Court therefore did not reach the merits of dispute, which included arguments over whether a commission in the Reserves was an "office" within the meaning of the Clause and whether such Incompatibility Clause determinations rest exclusively with Congress.[44]

Although Schlesinger held that citizens do not generally have standing to enforce the Incompatibility Clause, lower courts have occasionally heard Incompatibility Clause disputes in particular circumstances. In United States v. Lane, a service member convicted of wrongful use of cocaine had his conviction affirmed by a panel of the Air Force Court of Criminal Appeals that included Senator Lindsay Graham (who was also an officer in the United States Air Force Standby Reserve).[45] The lower court denied the service member's motion to disqualify the Senator from the panel based on the Incompatibility Clause.[46] On subsequent appeal, the U.S. Court of Appeals for the Armed Forces held this to be in error, finding that the service member had standing and that the Incompatibility Clause prevented a Senator from serving as an appellate judge on a military court of criminal appeal.[47]

Relying on its constitutional power to determine the qualifications of its own Members,[48] Congress--rather than the courts--has been the primary enforcer of the Incompatibility Clause. Thus, Congress has voted to deny seats to putative Members, or declared Members' seats to be vacant, based on their holding or acceptance of incompatible offices.[49] An early example of this practice occurred in the Seventh Congress, which relied on the Incompatibility Clause to declare the seat of then-Representative John P. Van Ness vacant based on his acceptance of the office of major in the District of Columbia militia.[50]

A recurring and unsettled issue relates to whether Members of Congress may simultaneously serve in the U.S. Armed Forces reserve despite the Incompatibility Clause.[51] Early congressional practice held that accepting a commission as an officer in the Army forfeited a Member's seat in Congress.[52] In 1916, during the First World War, the House Judiciary Committee issued a report finding that acceptance of a commission in the National Guard would vacate that Member's seat.[53] However, Congress did not act on the report.[54] During World War II, an opinion of the Attorney General concluded that Members would forfeit their seat if they entered the armed forces by enlistment or commission, should Congress "choose to act."[55] The opinion therefore urged the President to refrain from commissioning Members.[56] In recent decades, Congress has declined to take any action against Members holding Reserve or National Guard commissions, which may suggest acceptance of the practice.[57]

  1. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 210 (1974) (using "Ineligibility Clause" to refer to the first half of Art. I, Sec. 6, Clause 2 Bar on Holding Federal Office). Other names for this provision include the Emoluments Clause and the Sinecure Clause. See Seth Barrett Tillman, Originalism and the Scope of the Constitution's Disqualification Clause, 33 Quinnipiac L. Rev. 59, 64 n.12 (2014).
  2. See, e.g., Schlesinger, 418 U.S. at 210 (using "Incompatibility Clause" to refer to the second half of Art. I, Sec. 6, Clause 2 Bar on Holding Federal Office).
  3. See Buckley v. Valeo, 424 U.S. 1, 272-73 (1976) (White, J., dissenting) (explaining the distinction between the Clauses), superseded by statute, Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81.
  4. See Art. I, Sec. 6, Cl. 2: Incompatibility Clause and Congress.
  5. See Art. I, Sec. 6, Cl. 2: Ineligibility Clause (Emoluments or Sinecure Clause) and Congress.
  6. See The Federalist No. 76 (Alexander Hamilton) (describing the Ineligibility and Incompatibility Clauses as "important guards against the danger of executive influence upon the legislative body"); Buckley, 424 U.S. at 124 ("The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called 'Ineligibility' and 'Incompatibility' Clauses contained in Art. I, § 6. . . ."); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 869 n.11 (1995) (Thomas, J., dissenting) ("The Ineligibility Clause was intended to guard against corruption.").
  7. 1 The Records of the Federal Convention of 1787, at 20-21 (Max Farrand ed., 1911) [hereinafter Farrand's Records].
  8. Id.
  9. Id. at 217, 235.
  10. For historical perspectives on the framing of the Ineligibility and Incompatibility Clauses, see, for example, John F. O'Connor, The Emoluments Clause: An Anti-Federalist Intruder in A Federalist Constitution, 24 Hofstra L. Rev. 89, 91 (1995); Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045 (1994); Daniel H. Pollitt, Senator/Attorney-General Saxbe and the "Ineligibility Clause" of the Constitution: An Encroachment upon Separation of Powers, 53 N.C. L. Rev. 111 (1974).
  11. See, e.g., 1 Farrand's Records, supra note here, at 387 (comments of George Mason), 387-88 (comments of Roger Sherman).
  12. See, e.g., 1 Farrand's Records, supra note here, at 381-82 (comments of Alexander Hamilton); 2 Farrand's Records, supra note here, at 490 (comments of Charles Pinckney).
  13. 1 Farrand's Records, supra note here, at 379-82.
  14. See 1 Farrand's Records, supra note here, at 386-88.
  15. 1 Farrand's Records, supra note here, at 390.
  16. Id. at 386.
  17. 2 Farrand's Records, supra note here, at 283-84, 289. Pinckney's proposal, which lost by an evenly divided vote, would have made Members incapable of holding any federal office for which they "receive any salary, fees or emoluments of any kind--and the acceptance of such office shall vacate their seats respectively." 2 Farrand's Records, supra note here, at 284.
  18. 2 Farrand's Records, supra note here, at 489-90.
  19. 2 Farrand's Records, supra note here, at 491-92.
  20. 2 Farrand's Records, supra note here, at 568 (Committee of Style draft), 654 (final language).
  21. Freytag v. Comm'r, 501 U.S. 868, 904 (1991) (Scalia, J., dissenting) (citations omitted).
  22. Art. I, Sec. 6, Clause 2 Bar on Holding Federal Office. As the Clause forbids appointment during the time for which the Member was elected--even if that person is no longer a Member--resignation of one's congressional seat to take the other office does not cure the Ineligibility Clause violation. See Appointment to Civil Office, 17 Op. Att'ys Gen. 365, 366 (1882).
  23. Judges--Members of Cong.--Const. Restriction on Appointment (Article I, § 6, cl. 2) Omnibus Judgeship Bill, 2 Op. O.L.C. 431 (1978).
  24. Joseph Story, Commentaries on the Constitution of the United States § 864 (1833).
  25. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 219 (1974) (noting that Ex parte Levitt was "the only other occasion" where the Supreme Court faced a question under the Ineligibility and Incompatibility Clauses).
  26. Ex parte Levitt, 302 U.S. 633 (1937) (per curiam).
  27. Act of Mar. 1, 1937, ch. 21, 50 Stat. 24. The constitutionality of Justice Black's appointment was defended on a number of grounds, including that providing for retirement did not actually increase the emoluments of the office because Justices were already allowed to resign and continue receiving their full salary. For a discussion of these arguments, see William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327, 333-38 (2019) and Daniel H. Pollitt, Senator/Attorney General Saxbe and the "Ineligibility Clause" of the Constitution: An Encroachment upon Separation of Powers, 53 N.C. L. Rev. 111, 123-24 (1974).
  28. Ex parte Levitt, 302 U.S. at 633; see also McClure v. Carter, 513 F. Supp. 265, 270 (D. Idaho 1981) (holding that Senator lacked standing to challenge the appointment of Judge Abner Mikva based on the Ineligibility Clause), aff'd sub nom. McClure v. Reagan, 454 U.S. 1025 (1981).
  29. Rodearmel v. Clinton, 666 F. Supp. 2d 123, 128-29 (D.D.C. 2009), appeal dismissed, 560 U.S. 950 (2010).
  30. Const. Law--Article I, Section 6, Clause 2--Appointment of Member of Cong. to a Civ. Office, 3 Op. O.L.C. 298, 298 (1979); see also Const. Law--Article I, Section 6, Clause 2--Appointment of Member of Cong. to a Civil Office, 3 Op. O.L.C. 286 (1979).
  31. Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall, 26 Op. O.L.C. 40, 41 (2002).
  32. Nomination of Sitting Member of Cong. to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 284 (1996).
  33. Statutory Rollback of Salary to Permit Appointment of Member of Cong. to Exec. Office, 33 Op. O.L.C. 201, 202 (2009) (noting that Executive Branch "has not yet come to rest on a conclusion" as to whether the Saxbe fix complies with the Ineligibility Clause). Although the "fix" is named for its use in 1973 when President Nixon appointed Senator William Saxbe as his Attorney General, the first prominent usage was in 1903, when Congress reduced the compensation of the Secretary of State to allow President Taft to appoint Senator Philander Knox to that office. See generally John F. O'Connor, The Emoluments Clause: An Anti-Federalist Intrude in a Federalist Constitution, 24 Hofstra L. Rev. 89, 122-35 (1995) (reviewing the history of the Saxbe fix).
  34. See Statutory Rollback, 33 Op. O.L.C. at 201 (explaining this procedure); O'Connor, supra note here, at 93 (same).
  35. See Pollitt, supra note here, at 111-12.
  36. Pollitt, supra note here, at 112.
  37. Pollitt, supra note here, at 112
  38. Statutory Rollback, 33 Op. O.L.C. at 220. For contrary views, see Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, 907-11 (1994); O'Connor, supra note here, at 135-46; and Memorandum for the Counselor to the Attorney General, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Ineligibility of Sitting Congressman to Assume a Vacancy on the Supreme Court (Aug. 24, 1987).
  39. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 210 (1974).
  40. Art. I, Sec. 6, Clause 2 Bar on Holding Federal Office (emphasis added).
  41. See, e.g., 2 Deschler's Precedents § 13 (1976) (Member-elect may hold incompatible office if that office is resigned prior to the convening of Congress); accord 1 Hinds' Precedents §§ 497-98 (1907).
  42. 418 U.S. at 209.
  43. Id. at 217-28.
  44. Id. at 212-14. The President's Office of Legal Counsel has adopted the latter view, opining that "exclusive responsibility for interpreting and enforcing the Incompatibility Clause rests with Congress." Members of Cong. Holding Rsrv. Comm'ns, 1 Op. O.L.C. 242, 242 (1977). The Supreme Court has noted this as an open question but has not resolved it. Powell v. McCormack, 395 U.S. 486, 521 n.41 (1969) ("It has been argued that [the Incompatibility Clause and other provisions] is no less a 'qualification' within the meaning of Art. I, § 5, than those set forth in Art. I, § 2. We need not reach this question, however . . . .") (citations omitted).
  45. 64 M.J. 1, 2 (C.A.A.F. 2006).
  46. Id.
  47. See id. at 3-4, 6-7.
  48. See supra Art. I, Sec. 5, Cl. 1: Congressional Authority over Elections, Returns, and Qualifications.
  49. See, e.g., 6 Cannon's Precedents §§ 60, 65 (1935); 1 Hinds' Precedents §§ 486, 487, 488, 492, 501, 504 (1907).
  50. See 1 Hinds' Precedents § 486 (1907).
  51. 2 Deschler's Precedents § 14 (1976) ("An unresolved issue relating to incompatible offices and military service is the status of Members of Congress who hold reserve commissions in branches of the armed forces. Congress has declined on several occasions to finally determine whether active service with the reserves is an incompatible office under the United States.").
  52. See, e.g., 1 Hinds' Precedents §§ 487-92, 494 (1907).
  53. See 6 Cannon's Precedents § 60 (1935).
  54. Although the Members kept their seats, the Speaker of House initially declined to pay the salaries of Members who had accepted commissions. See David J. Shaw, An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve, 97 Geo. L.J. 1739, 1750 (2009). A few years later, Congress voted to pay salaries to such Members, less the compensation received from the Army. Id.; 6 Cannon's Precedents § 61 (1935).
  55. Members of Cong. Serving in the Armed Forces, 40 Op. Att'ys Gen. 301, 303 (1949).
  56. Id.
  57. 2 Deschler's Precedents §§ 14, 14.1, 14.4 (1976). For a review of arguments as to whether the Incompatibility Clause permits or forbids dual service in Congress and the armed forces reserve, see Shaw, supra note here, at 1755-66.