Nicolas, Peter, “Nine, of Course: A Dialogue on Congressional Power to Set by Statute the Number of Justices on the Supreme Court“. New York University Journal of Law & Liberty, Forthcoming

In this article, I hypothesize that 28 U.S.C. Section 1, which sets the number of justices on the United States Supreme Court at nine, is not a constitutionally valid exercise of congressional power. Rather, I theorize, under the design of the Constitution, the number of justices on the Supreme Court at any given time will vary depending on the number of justices the President chooses to nominate and how many of those, if any, members of the Senate opt to confirm.

In the manuscript, I consider and reject potential sources of congressional power to enact the statute, including the Necessary and Proper Clause of Article I and the Regulations Clause of Article III. I then consider how the constitutionality of the statute would be determined, including who would have standing to bring a challenge. Finally, I examine the consequences of my hypothesis.

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?