Senator/Colonel/Judge Graham and the Incompatibility Clause:

The U.S. Court of Appeals for the Armed Forces held yesterday, in U.S. v. Lane, that appointing Senator Lindsey Graham — a colonel in the reserves — as a military appellate judge violated the Incompatibility Clause of the Constitution ("no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office"). The appellate panel's decision upholding Airman Lane's conviction was therefore reversed, and the appeal was remanded for reconsideration by a properly constituted panel.

Tracy Johnson (www):
I didn't read very far. So I didn't read the dissent. Assuming the current belief is that pronouns in the constitution are gender neutral, I assume one picked up on the fact that it was "her" Continuance in Office, not "his" and she could therefore be excepted from the clause? Ha ha, ;^)
9.21.2006 1:59pm
Sean M.:
I think CAAF was right in its decision. The irony in these sorts of decisions though is that it is going to make little, if any, practical difference for Airman Lane. The decision below was void, and the case was remanded for consideration by a properly constitued panel...

...Which will probably just uphold the conviction again. So while it's a "win," I can't imagine Airman Lane's final disposition will change any.

This of course comes up in a lot of cases. It doesn't make these cases bad: We need them to decide these sorts of procedural things. But the client sees little to no benefit from them.
9.21.2006 2:00pm
John T (mail):
I assume one picked up on the fact that it was "her" Continuance in Office, not "his" and she could therefore be excepted from the clause?

I'm a little confused. Are you suggesting that Sen. Lindsey Graham is a woman? Because he's not.
9.21.2006 2:04pm
AppSocRes (mail):
Tracy Johnson and John T: moot in any case since 1 USC Chpt 1 Pt 1 discusses the application of pronouns in US law and I expect it would apply to the interpretation of the Constitution
9.21.2006 2:21pm
Seems right to me--I would think that an Article I judge does in fact hold an office under the United States.

But I do wonder how often this principle is violated, as the dissent points out (e.g., what about members of Congress just being reserve officer? Or serving on diplomatic missions?).
9.21.2006 2:56pm
Chris 24601 (mail):
The way the clause is written, it sounds like Graham should be removed from the Senate, not removed from his "Office under the United States."
9.21.2006 3:05pm
Realist Liberal (mail):
I didn't take the time to read the full decision but I'm confused. Does military court not use harmless error? It looks like the panel that Sen. Graham served on was unanimous. If so it seems like replacing him could, at best, result in a 2-1 panel against Airman Lane. How can Lane show prejudice?
9.21.2006 3:23pm
Dylanfa (mail) (www):
What Chris said. If the "Office" was held prior to his election as Senator, his election itself should on a literal reading invalid. If the appointment to his Office was after his election, then I suppose you can take your pick of making the appointment void or holding that he presumptively resigned from the Senate to take it.
9.21.2006 3:40pm
Mikeyes (mail):
I think that I am correct in that Sen. Graham's commission in the armed forces is by presidential appointment making him a person holding an office under the United States since he was appointed by the President and approved by the Senate (at least that is what my appointment letter said.)

So apparently he is in violation of the Incompatibility Clause without having to be a judge too. However, as far as I can tell, no congressman or senator has ever been called out on this.
9.21.2006 3:41pm
Matthew Wright (mail):
A few points:

1. A constitutionally invalid appellate panel is not 'harmless error.' See, e.g. Nguyen v. U.S. 539 U.S. 69 (2003) (territorial article i/iv 'district judge' 's designation to sit on 9th cir panel held reversible error) (though the Court punted on the Constitutional ?). It's a structural error.

2. People tried to get congressional military officers booted in Schlesinger v. Reservist
Comm. to Stop the War
, 418 U.S. 208, 210 n.2 (1974). Held: no taxpayer standing. OLC issued a memo, consistent with the government's position in Schlesinger, that says it's a qualifications issue. No one (until Lane) has really had the standing to raise the claim again.

3. It's clear that CAAF doesn't have the power to kick members of Congress out of the military OR Congress. However, the propriety of the Air Force CCA panel is squarely within their jurisdiction.

4. Look back at the Ryder case cited by the majority. If "officer" in appointments clause means the same as "Person holding any office" in the incompatibility clause, then it's pretty much QED.

5. Isn't this outcome(only discussing service as a military appellate judge) more consistent with a Volokhian (or other conservative) view of the judiciary? Sure, there may be no LOGICAL way to distinguish between the "office" of reserve officer and the "office" of military judge for purposes of the clause; but the former isn't really hurting anyone and isn't within the jurisdiction of the court.

6. I'm actually a huge Lindsey Graham fan personally and if any of his minions are reading this please give him my regards, he stated (I think) in an interview that he will accept whatever is the ruling of CAAF.

7. shameless plug - double u double u double u dot jagcentral dot com - - - we had some articles about this issue when it came up, and eventually someone will get around to posting on this decision.

8. full disclosure - i've been anxiously awaiting this decision for months! see Amicus Brief at 18 n. 10 (
9.21.2006 4:19pm
Matthew Wright (mail):
sorry -- i got sloppy in my copy and paste from the dissent. Schlesinger cite was supposed to be to the whole case, not the note.
9.21.2006 4:21pm
Milhouse (www):
Butbutbutbutbut... There's something fundamental missing here. The constitution doesn't say "no Member...shall hold Office..."; it says "no Person holding any Office...shall be a Member". The majority has simply ignored this, and its entire decision is based on the supposition that the clause says the opposite of what it does say. There simply is no basis in the constitution for invalidating Sen. Graham's judgeship. There is a basis for expelling him from the Senate, and like any qualification issue that's up to the Senate; it has chosen not to do so, and there the matter should rest.
9.21.2006 4:31pm
Paul Johnson (mail):
The "JAG Central" link spelled out in Matthew Wright's first post should be "dot org" and not "dot com."

And to follow up on Milhouse, the plain text is arguably self-executing: during the term of Senator Graham's office as a military appellate judge, he is automatically not a member. (I hope he didn't cast any deciding votes in the Senate while he was on active duty!)
9.21.2006 4:36pm
RI Lawyer:
A similar situation arose in RI a few years ago in the reverse, regarding the Cheif Judge of the RI Supreme Court who had accepted appoiuntment as a member of the Military Review Panel.

Article 3, Section 6 of the RI Constitution provides:

Holding of offices under other governments - Senators and representatives not to hold other appointed offices under state government. - No person holding any office under the government of the United States, or of any other state or country, shall act as a general officer or as a member of the general assembly, unless at the time of taking such engagement that person shall have resigned the office under such government; and if any general officer, senator, representative, or judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated; but this restriction shall not apply to any person appointed to take deposition or acknowledgement of deeds, or other legal instruments, by the authority of any other state or country."

A licensed attorney brought suit to declare the Chief Judge's position vacant under the provisions of Article 3, Section 6. The trial court denied the defendant's motion to dismiss for lack of standing, failure to state a claim and lack of subject matter jurisdiction. The defendant's petition for certiorari was quickly granted by the RI Supreme Court.

In an opinion by the 4 remaining members of the Court, (with one member concurring in part and dissenting in part) the decision of the trial court was reversed and the action was dismissed with prejudice. The court determined that plaintiff lacked standing to maintain the action, that the Superior Court had no subject matter jurisdiction to hear the action unless it was brought by the state Attorney General, who in the trial court had taken the position that the plaintiff's complaint was without merit and declined to bring an action. Finally, in order to tie all the pieces together, the Court decided to reach the merits of the action, which as far as I know had not been briefed or argued before the Court, and held that reading the RI Constitution to prohibit the Chief Judge from accepting this appointment would violate the Supremacy Clause of the US Constitution, and therefore they declined to adopt that interpretaion.

All in all a fairly remarkable approach for a state court to take in construing the state's constitution. I believe that the Court strained to reach the result it did, even in light of the procedural irregularities and substantive weaknesses of its analysis, in order to "support" the so-called "war on terror." These last few sentences of the Court's opinon are telling:

Finally, we wish to indicate our conviction that the Chief Justice accepted this position with the purest of motives and out of a patriotic spirit of long duration. We are satisfied that this limited and temporary service in a judicial capacity associated with our nation's antiterrorism efforts will in no way conflict with his duties as Chief Justice of the Rhode Island Supreme Court. Accordingly, the decision of the Superior Court is quashed, and the case is dismissed in its entirety.

The decision can be found at McKenna v. Williams, 874 A.2d 217 (R.I. 2005).
9.21.2006 4:58pm
Cornellian (mail):
I think "Lindsay" is the feminine spelling, with "Lindsey" being the masculine spelling.
9.21.2006 6:48pm
Milhouse &Paul,
IANAL, but it seems to me to be saying that if you are one, you can't become the other and vice versa. If he was a judge before becoming senator, then the election may be void, else the judgeship would be rendered null. I don't see how the supposed annulment of his senate membership could come into play if it already prohibits bringing a Senator or Representative into jeopardy.
That would at least be a plain reading of it.
9.21.2006 6:48pm