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?