So on the West Wing this week, it turns out that presidential candidate and congressman Matt Santos (portrayed by Jimmy Smits) is also a pilot in the Marine Reserves. If you’re like me, about two days after you watched this episode, little bells went off in your head. How can a Congressman, a creature of the legislative branch, also be commissioned in the Marines (part of the executive branch)? What happened to separation of powers?

The operative clause in the US Constitution is Article I, 6, cl. 2:

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.

And I guess the only relevant case law is Schlesinger v. Reservists to Stop the War, where the Supreme Court decided 5-4 that neither citizens nor taxpayers had the standing to bring suit to contest the fact that a Congressman was also a military reservist.

This prompts two questions: One, who would have standing to challenge this kind of thing? Other Congressmen? Other reservists? And two, what other sorts of things can the government do that no one would have the proper standing to sue to challenge?

3 Responses to “indecidable questions”

1. ErH says:

   10/5/2005 at 1:24 pm

   1. I don’t see what any of this has to do with Adebisi and The Others or with Polar Bears.

   2. You should ask these legislators about separation of powers:
      (including your neighbor in the IL-10th)

   Senator Lindsey Graham (South Carolina) Congressman Steve Buyer (Indiana) Congressman Mark Steven Kirk (Illinois 10th)* Congressman John Shimkus (Illinois) Congressman Roger Wicker (Mississippi) Congressman Joe Wilson (South Carolina)

   1. Don’t forget the “state secrets privilege” — an executive power handed down from the English throne under common law that lets the government kill ANY civil lawsuits deemed a threat to national security, even if the state is not a party to the suit.
2. thatbob says:

   10/6/2005 at 10:34 am

   How can you even sleep at night? I know I can’t.
3. thatbob says:

   10/8/2005 at 12:54 pm

   On second reading, I think this clause is only good against appointments, like cabinet positions, ambassadorships, um, heads of the postal service…

   And clearly service in the Marine Reserves is some kind of quasi-volunteer-semi-professional-career-service-kind-of-thing, and there ain’t no clause against those.