The Incompatibility Clause

. . . no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

—Josh Blackman & Seth Barrett Tillman

Introduction

The Incompatibility Clause bars members of Congress from concurrently “holding any Office under the United States.” Such an office is an incompatible position. This provision was not designed primarily to protect the separation of powers between the legislative and executive branches. Rather, it prevents the President from unduly influencing members of Congress with appointments. Incompatibility provisions stretch back to eighteenth-century British statutes, colonial legislatures, post-independence state law, and the Articles of Confederation. The Incompatibility Clause’s restrictions apply after a member takes his congressional oath and is recognized as a member. Its text does not prohibit a member from concurrently holding a position in state government, nor does it prevent a person from serving in both the executive and judicial branches of the federal government. It is generally accepted that the Incompatibility Clause bars a member of Congress from holding appointed positions in the federal government, but there is academic debate about whether it also bars a sitting member of Congress from serving as the President or Vice President, both of which are elected positions.

History Before 1787

The Incompatibility Clause traces its roots to English and British statutes enacted in the early eighteenth century.¹ These statutes addressed a well-known problem: The monarch would reward loyal members of the House of Commons with appointments to lucrative positions under the Crown’s control. Parliamentary reformers took steps to limit this practice, which many thought corrupt. A 1700 English statute provided that “no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons,”² and a British 1707 statute disqualified any person from holding a seat in the House of Commons if he held a “new office or place of profit whatsoever under the [C]rown.”³

These statutes did not apply to members of the colonial legislatures. In the Massachusetts lower house, for example, it was “common” practice for members to be chosen as clerk.⁴ Samuel Adams held both positions concurrently for several years and received compensation for both.⁵ For parliamentary reformers, the primary risk was the Crown’s domination of members through appointments to lucrative offices, including parliamentary clerk positions. In the colonial legislatures, there was an additional corruption-related risk: The position of legislative clerk was sometimes controlled by the popular assembly, and such bodies would give these positions to members.⁶ Thus, “corruption” also took the form of self-dealing by and for members as opposed to the risk of domination of members by the executive.

The Founders addressed this problem following independence. The Pennsylvania constitution of 1776 specified that no member of the state House of Representatives “while he continues such, [can] hold any other office, except in the militia.”⁷ It is not clear whether this provision applied only to positions in the executive and judicial branches or whether it also included legislative positions. The Massachusetts constitution of 1780 prohibited a member of the state House of Representatives and Senate from “holding . . . at the same time” several appointed positions, including “Clerk of the House of Representatives.”⁸ It further specified that a member’s accepting such a position “shall operate as a resignation of their seat in the Senate or House of Representatives; and the place so vacated shall be filled up.”⁹

The Articles of Confederation also addressed concerns about conflicts and self-dealing through two incompatibility provisions. The Congress established by the Articles was a unicameral body. Each state would appoint delegates to that body.¹⁰ The Articles Congress had the power to appoint “civil officers as may be necessary for managing the general affairs of the United States under their direction.”¹¹ However, a delegate was not “capable of holding any office under the United States, for which he, or another for his benefit receives any salary, fees or emolument of any kind.”¹² Moreover, delegates could not “be appointed a judge of any of the said courts” under the Articles concerning piracies, felonies on the high seas, and captures.¹³

The primary purpose of such provisions was to prohibit self-dealing: that is, delegates appointing themselves to lucrative positions created by and responsible to the Articles Congress and then concurrently holding both positions. In our view, the category of “office[s] under the United States” included only positions appointed by the central Articles government.¹⁴ Under the Articles of Confederation, both delegates and officeholders, who were not otherwise subject to restrictions under state law, could concurrently hold positions in state governments.¹⁵ Delegates also were not barred from holding an “office under the United States” that lacked any compensation.

The incompatibility provisions of the Articles of Confederation were not designed to facilitate the separation of powers between or among branches of the government. After all, that government had only one permanent branch: the Articles Congress. Rather, these provisions were intended primarily to prevent conflicts and self-dealing involving members and lucrative offices. By contrast, the Virginia constitution of 1776 expressly separated the three branches of government and provided that no person shall “exercise the powers of more than one of them, at the same time.”¹⁶ Scholars have observed that “the [Incompatibility] Principle seems to have been grounded less in separation-of-powers theory than in the Framers’ vivid memory of the British Kings’ practice of ‘bribing’ Members of Parliament . . . with joint appointments to lucrative executive posts.”¹⁷ This concern about self-dealing continued through the Philadelphia Convention.

The Constitutional Convention

During the Constitutional Convention, the drafting histories of the Ineligibility Clause and the Incompatibility Clause were closely intertwined. These concepts are related but would operate in distinct ways under the Constitution. An incompatibility can be cured if the member resigns from Congress; he can then hold the appointed position. However, an ineligibility cannot be cured if the member resigns from Congress. Rather, the ineligibility will continue for a specific period of time.

An early articulation of these general principles appeared in a Committee of Detail draft in the handwriting of Edmund Randolph of Virginia. Randolph proposed that members of the legislative branch “shall be ineligible to and incapable of holding offices under the authority of the united states, during the term of service of the house of delegates.”¹⁸ This somewhat opaque text was not adopted.

On August 14, 1787, the Convention considered a draft ineligibility clause that would have barred Representatives from holding an appointed “office under the authority of the United States during the time for which they shall respectively be elected” and made Senators ineligible for one additional year.¹⁹ Charles Pinckney of South Carolina “argued that . . . making the members ineligible to offices was degrading to them.” He warned that the “Legislature would cease to be a magnet to the first talents and abilities.”²⁰ Pinckney instead proposed an incompatibility clause: “The members of each House shall be incapable of holding any Office under the United States for which they, or any other for their benefit, receive any salary, fees, or emoluments of any kind—and the acceptance of such office shall vacate their seats respectively.”²¹ In short, the member could choose which position he would hold—a seat in the legislature or the appointed lucrative office—but he could not hold both concurrently. This draft resembled the language in the incompatibility clauses from the Massachusetts constitution and the Articles of Confederation. Elbridge Gerry of Massachusetts countered that “disqualification was [not] degrading” and added that “[i]f men will not serve in the Legislature without a prospect of such offices, our situation is deplorable indeed.”²² After a lengthy debate, the Convention postponed consideration until “it should be seen what powers would be vested in the Senate.”²³

The Convention returned to the matter on September 1. David Brearley of New Jersey, chairman of the Committee of Postponed Parts, proposed a new draft that imposed both an ineligibility and an incompatibility: “The members of each House shall be ineligible to any civil office under the authority of the U. S. during the time for which they shall respectively be elected, and no person holding an office under the U. S. shall be a member of either House during his continuance in office.”²⁴ The early eighteenth-century English statutory predecessors extended only to lucrative offices; by contrast, Brearley’s proposed incompatibility provision also extended to offices to which no compensation was attached.

The Convention debated the Brearley proposal on September 3.²⁵ Pinckney “was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility.”²⁶ Roger Sherman of Connecticut “was for entirely incapacitating members of the Legislature” and worried that “their eligibility to offices would give too much influence to the Executive.”²⁷ As in the British system, it was feared that the President could reward loyal members of the legislature with lucrative appointments. The vote on the Committee of Postponed Parts’ proposal failed with a tie vote of 5 to 5.²⁸

Sherman had offered a compromise: that “the incapacity ought at least to be extended to cases where salaries should be increased, as well as created, during the term of the member.”²⁹ In other words, members would be ineligible for two categories of positions: federal statutory positions that were created during their elected terms, and federal statutory positions for which the compensation was increased during their elected terms. Hugh Williamson of North Carolina followed Sherman’s suggestion and narrowed the positions that would trigger an ineligibility: “The members of each House shall be ineligible to any Civil office under the authority of the U. States, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected.” The text of the Incompatibility Clause remained unchanged: “And no person holding any office under the U. S. shall be a member of either House during his continuance in office.”³⁰

Williamson’s proposal was adopted without any further debate.³¹ The Incompatibility Clause was referred to the Committee of Style, and no further changes were made.³²

In the end, the Framers adopted both an ineligibility provision and an incompatibility provision. The ineligibility would last for the member’s elected term and apply to newly created positions as well as positions for which the emoluments were increased. The incompatibility would last while the member continued to serve in Congress. A member could eliminate the incompatibility by resigning from Congress, or an officeholder could resign from office and then take a seat in Congress. But a member’s resignation could not eliminate ineligibility.

The Ratification Debates

During the ratification debates, the Ineligibility Clause generated a measure of controversy. Some critics of the Constitution warned that members should be ineligible for appointment to any offices during their elected terms and not just barred from newly created offices or offices for which the emoluments were increased. In other words, these critics wanted a broad ineligibility rather than a qualified ineligibility. (See Essay No. 33.)

There does not seem to have been much debate about the Incompatibility Clause. This provision created a broad incompatibility against concurrently being a member and holding an “Office under the United States.” Supporters and critics of the Constitution did not seem to object to forcing members of Congress to make a choice about which position they would hold.

Dual Officeholding in the Executive and Judicial Branches

The Incompatibility Clause prohibits members of Congress from concurrently “holding any Office under the United States.” It is clear enough that the position of member of Congress is not an “Office under the United States.” Otherwise, Representatives and Senators would be barred from holding their seats in Congress.

Further, it has long been understood that this provision does not prohibit dual officeholding in the executive and judicial branches. For example, in 1799, President John Adams appointed Chief Justice Oliver Ellsworth to serve as an envoy to France.³³ Ellsworth held both positions concurrently. In 1801, Adams appointed Secretary of State John Marshall to serve as Chief Justice.³⁴ Adams requested and authorized Marshall “to continue to discharge all the Duties of Secretary of State, untill ulteriour Arrangements can be made.”³⁵

Concurrently Holding Positions in Congress and in State Governments

It is generally accepted that the Incompatibility Clause does not prohibit a member of Congress from concurrently holding a position in a state government, though there is some contrary authority.³⁶ In Federalist No. 56, James Madison observed that “representatives of each state [in Congress] . . . will probably in all cases have been members, and may even at the very time be members of the state legislature.” While serving in the First and Second Senate, Charles Carroll of Maryland concurrently held a seat in the Maryland Senate between 1789 and 1792.³⁷ Several other members of Congress also held state positions.³⁸ Such joint officeholding was subsequently barred by Maryland law.³⁹

Nevertheless, as a matter of practice, members have regularly resigned their seats in Congress before assuming a state position. In 1790, Senator William Paterson became the first Senator to resign from Congress. He resigned after he was elected governor of New Jersey.⁴⁰ In the twentieth century, after Senate vacancies had arisen, several governors resigned and were then appointed to the vacant Senate seats by their successors.⁴¹ In 1957, Jacob K. Javits resigned his position as New York Attorney General the day that he took his oath as Senator.⁴²

However, the better view is that the Incompatibility Clause did not require them to resign, as the example of Charles Carroll, who served concurrently in Congress and the Maryland legislature, demonstrates. Some scholars suggest that some state positions may in fact be “Office[s] under the United States” and therefore covered by the Incompatibility Clause.⁴³ The House has determined that “the duties of a Member of the House and of the governor of a State are absolutely inconsistent and may not be simultaneously discharged by the same person,”⁴⁴ but it does not appear that this determination was expressly affirmed in connection with the Incompatibility Clause.

In any event, state law may prohibit holders of state positions from concurrently holding federal positions. For example, Maryland amended its constitution to bar joint state-federal legislative service as well as joint state-federal officeholding.⁴⁵ In consequence of this state constitutional amendment, Senator Charles Carroll resigned from Congress to retain his state senate seat.⁴⁶

Concurrently Holding Positions in Congress and in the Executive and Judicial Branches

It is generally accepted that the Incompatibility Clause bars a member of Congress from holding appointed positions in the executive and judicial branches. For example, in May 1800, President John Adams nominated Senator Samuel Dexter of Massachusetts to be Secretary of War. It appears that Dexter became the first Senator to resign to accept an executive branch appointment.⁴⁷

However, there is some debate about whether the Incompatibility Clause bars a sitting member of Congress from serving as President or Vice President, and no court has resolved this issue. Joseph Story reasoned, based on several provisions of the Constitution, that the presidency and vice presidency are not “Office[s] under the United States.” If that is correct, these positions are not subject to the Incompatibility Clause.⁴⁸ We agree with Story.⁴⁹ In our view, the phrase “Office under the United States” extends to appointed positions in all three Branches but not to elected positions.⁵⁰

Our position is entirely consistent with the text of the Religious Test Clause. Article VI provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” We contend that the phrase “public Trust under the United States” includes elected positions, while “Office . . . under the United States” refers to appointed positions.⁵¹ If “Office . . . under the United States” includes both appointed and elected federal positions, then “public Trust under the United States” would not refer to any positions. For these reasons, we suggest that the better reading is that “Office under the United States” refers only to appointed positions. This view is consistent with Story’s reading of the Constitution.

To date, no sitting member of Congress has concurrently held the presidency or vice presidency. Three sitting Senators (Warren G. Harding, John F. Kennedy, and Barack Obama) have resigned their positions to become President. More than a dozen Senators (including J.D. Vance, Kamala Harris, Joe Biden, Al Gore, Dan Quayle, and Harry S. Truman) have resigned their positions to become Vice President. In our view, the Incompatibility Clause did not require these Senators to resign their seats in Congress.⁵² This provision was not designed primarily to preserve the separation of powers, but to prevent the President from unduly influencing members of Congress with appointments.

One federal district court decision stated that the consequences of the President’s also serving in Congress would be “bizarre.”⁵³ Other scholars have taken the same position.⁵⁴ The federal judge and these scholars claim that “Office under the United States” refers to positions in the federal government, both appointed and elected. Even if the Incompatibility Clause does not textually bar concurrently holding a congressional seat and the presidency, it is still possible that such concurrent officeholding is otherwise barred, perhaps by an atextual or implied structural separation of powers principle.⁵⁵

When Does an Incompatibility Arise?

The Incompatibility Clause applies to “a Member of either House.” The category of “member[s]” is narrower than the category of “Senators and Representatives.”⁵⁶ Not all Senators and Representatives become members. Senators and Representatives begin their terms as members-elect from the date of the start of their two-year or six-year constitutional terms. Customarily, before the start of their terms, a state secretary of state or other state elections official provides the Senator or Representative—that is, the member-elect—with bona fide credentials or a certificate of election. Then the member-elect travels to the Capitol and presents those credentials. But such a member-elect does not become a member until his house organizes and accepts him as a member. Each house is the “Judge of the Elections, Returns and Qualifications of its own Members.”⁵⁷ (See Essay No. 24.)

The Incompatibility Clause bars “a member of either House” from holding “any Office under the United States.” But this restriction applies only to actual members, and not to members-elect. Therefore, when a member-elect’s two-year or six-year constitutional term begins, before he is recognized as a member, he could still hold an appointed position in the executive or judicial branch. It appears that in order to be recognized as a member, however, the member-elect must resign any incompatible office he holds.

These sorts of disputes are not hypothetical. In 1818, the House of Representatives drew this distinction between member and member-elect when it accepted the credentials of Samuel Herrick, a member-elect who was also a United States Attorney. The House decided that a member-elect “was not affected by the constitutional requirement that an officer . . . shall not be a Member.”⁵⁸ As a result, Herrick was permitted to become a member after having resigned from the incompatible office. The practice has become that the Incompatibility Clause does not apply until the member takes his oath.⁵⁹ The courts have recognized this precedent.⁶⁰

Incompatible Positions in the Military

The Ineligibility Clause is limited to “civil” positions, and thus it does not apply to military positions. The Incompatibility Clause, however, applies to both civil and military offices. The House has declared vacant many seats of members who were commissioned as active-duty officers in the armed forces,⁶¹ although the practice has not been uniform. For example, Congress has not definitively resolved whether members can concurrently be officers in the armed forces reserves. A federal district court ruled that service in the reserves created an incompatibility.⁶² However, on appeal, the U.S. Supreme Court reversed and found that the plaintiff lacked legal standing to bring the suit.⁶³

Three decades later, this issue returned to the judiciary. Senator Lindsey Graham served as a lieutenant colonel in the Air Force Reserves. Graham sat on an Air Force Court of Criminal Appeals panel that reviewed an airman’s conviction. The airman filed a motion to recuse Senator Graham on the ground that his service on the court violated the Incompatibility Clause. The U.S. Court of Appeals for the Armed Forces held that the position of judge on the Air Force Court of Criminal Appeals is an “office of the United States and cannot be filled by a person who simultaneously serves as a Member of Congress.”⁶⁴ As a result, Graham should not have served on the panel, and the proceedings were invalidated. Despite this ruling, Senator Graham continued to serve in the Air Force Reserves until his retirement from the reserves in 2015, but he apparently did not sit on any other judicial panels.⁶⁵

Open Questions

• Assume that a person is elected to a term in Congress that begins on January 3; however, he does not take the oath on that day and instead accepts an incompatible office in the executive branch. After accepting his appointment, he attempts to take the congressional oath. Does the member-elect surrender his appointment in the executive branch by taking the congressional oath, or does he lose his House seat by not giving up the executive office before taking the oath? Neither of these questions is answered directly by the text. In 1909, on facts analogous to this hypothetical situation, the House ruled that the congressional seat is automatically vacated.⁶⁶
• What if the chronology in the example above were reversed and a person who already holds an executive branch office was afterwards elected to Congress and then attempted to take his congressional oath? Does he surrender the executive branch position by taking the congressional oath, or does his holding the executive branch position preclude his taking a valid congressional oath and so cause the member-elect to lose his House seat?
• It is clear that the House or the Senate can resolve an incompatibility conflict by declaring a seat vacant, but the courts could also review an action by a person holding a seat in Congress and an incompatible office either in the executive or judicial branch. Can the courts declare unlawful executive or judicial actions taken by a member holding an incompatible office? Can the courts remove such an officer? Can a court invalidate a legislative vote cast before a seat is declared vacant by the house of Congress to which the member was elected? In Griffin’s Case, Chief Justice Salmon P. Chase suggested that such a legislative vote would remain valid.⁶⁷
• Is an Incompatibility Clause violation a “qualification” like citizenship, age, and inhabitancy or residence, or is it somehow different? Is an Ineligibility Clause violation a “qualification”?

1. C. Ellis Stevens, Sources of the Constitution of the United States, Considered in Relation to Colonial and English History 109 (New York, Macmillan & Co. 1894); Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 279–80 (2014). ↩︎
2. The Act of Settlement, 12 & 13 Will. III, c. 2, § 3 (1700) (Eng.). ↩︎
3. Act for the Security of Her Majesty’s Person and Government and of the Succession to the Crown of Great Britain in the Protestant Line of 1707, 6 Ann., c. 7, § 25 (Gr. Brit.), https://perma.cc/VN7A-X32T. ↩︎
4. William Tudor, Life of James Otis, of Massachusetts 270–71 (1823), https://perma.cc/XK2C-FN9U. ↩︎
5. John K. Alexander, Samuel Adams: The Life of an American Revolutionary 50, 60, 126 (2011). ↩︎
6. Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 229–31 (De Capo Press 1971) (1943); Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1776, at 207–12, 219 (1963). ↩︎
7. Pa. Const. of 1776, § 7. ↩︎
8. Mass. Const. of 1780, ch. VI, art. II. ↩︎
9. Id. ↩︎
10. Articles of Confederation, art. VI, § 1. ↩︎
11. Id. art. IX, § 5. ↩︎
12. Id. art. V, § 2. ↩︎
13. Id. art. IX, § 1. ↩︎
14. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part IV: The ‘Office . . . under the United States’ Drafting Convention, 62 S. Tex. L. Rev. 455, 471 (2023). ↩︎
15. Md. Const. of 1776, art. LXXX; Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180, 199–200 (2013). ↩︎
16. Va. Const. of 1776, § 5. ↩︎
17. Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045, 1050–51 (1994). ↩︎
18. 2 Farrand’s 137, 138, 140. ↩︎
19. Id. at 282, 283 n.1. ↩︎
20. Id. at 283–284. ↩︎
21. Id. at 282, 283 n.1. ↩︎
22. Id. at 285. ↩︎
23. Id. at 290. ↩︎
24. Id. at 484. ↩︎
25. Id. at 489–90. ↩︎
26. Id. at 490. ↩︎
27. Id. ↩︎
28. Id. at 492. ↩︎
29. Id. at 490. ↩︎
30. Id. at 492. ↩︎
31. Id. ↩︎
32. Id. at 568. ↩︎
33. John Adams, Message to the Senate on the Appointment of the Nomination of Envoys to France (Feb. 25, 1799), https://perma.cc/T3GK-ZQZY. ↩︎
34. Letter from John Adams to John Marshall (Feb. 4, 1801), https://perma.cc/T6HD-NVF5. ↩︎
35. Id. ↩︎
36. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177, 219 (2008). ↩︎
37. CARROLL, Charles (of Carrollton) 1737–1832, Biographical Directory of the United States Congress, https://perma.cc/LN53-CCYD. ↩︎
38. Tillman, supra at 200 n.66. ↩︎
39. Id. at 199–200. ↩︎
40. PATERSON, William 1745–1806, Biographical Directory of the United States Congress, https://perma.cc/VH79-V56L. ↩︎
41. Ken Rudin, When Governors Appoint Themselves to the Senate, NPR (Sept. 8, 2009), https://perma.cc/K5BQ-CDZJ. ↩︎
42. 2 Deschler’s Precedents ch. 7, § 13.1. ↩︎
43. Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30 (2012); Lawrence Lessig, A Reply to Professor Hasen, 126 Harv. L. Rev. F. 61, 70 (2012). ↩︎
44. 6 Cannon’s Precedents, § 65. ↩︎
45. Md. Const. of 1792, https://perma.cc/VHH2-XU3H. ↩︎
46. CARROLL, Charles (of Carrollton) 1737–1832, Biographical Directory of the United States Congress, https://perma.cc/LN53-CCYD. ↩︎
47. From the Senate to the Cabinet, May 13, 1800, United States Senate: Historical Highlights, https://perma.cc/7TWX-C8UW. ↩︎
48. 2 Story’s Commentaries § 791. ↩︎
49. Tillman & Blackman, Offices and Officers of the Constitution, Part IV, supra at 526–29. ↩︎
50. Id. at 459; Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses, 63 S. Tex. L. Rev. 237 (2024). ↩︎
51. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 396 (2022). ↩︎
52. Seth Barrett Tillman, Senator and Vice President of the United States: Could J.D. Vance Hold Both Positions at the Same Time?, Jurist (July 25, 2024), https://perma.cc/W9T9-XPQF; Seth Barrett Tillman, Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?, Jurist (Nov. 30, 2020), https://perma.cc/24BP-G6M3; Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist (Aug. 23, 2012), https://perma.cc/6DH9-LFVN. ↩︎
53. District of Columbia v. Trump, 315 F. Supp. 3d 875, 884 n.17 (D. Md. 2018), vacated, 838 F. App’x 789 (4th Cir. 2021). ↩︎
54. Saikrishna Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y 143, 148–51 (2009). ↩︎
55. Tillman & Blackman, Offices and Officers of the Constitution, Part V, supra at 291. ↩︎
56. Josh Blackman & Seth Barrett Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, 15 N.Y.U. J.L. & Liberty 1, 12 (2021). ↩︎
57. Art. I, § 5, cl. 1. ↩︎
58. 1 Hinds’ Precedents § 499, https://perma.cc/B5V8-XFD6. ↩︎
59. John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89, 99 (1995). ↩︎
60. United States v. Dietrich, 126 F. 676, 683 (C.C.D. Neb. 1904). ↩︎
61. 2 Deschler’s Precedents, ch. 7, §§ 14, 14.1. ↩︎
62. Reservists Comm. to Stop War v. Laird, 323 F. Supp. 833 (D.D.C. 1971). ↩︎
63. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974). ↩︎
64. United States v. Lane, 64 M.J. 1, 8 (U.S. Court of Appeals for the Armed Forces 2006), reversing 60 M.J. 781 (U.S.A.F. Crim. App. 2004) (per curiam). ↩︎
65. Craig Whitlock, Sen. Graham Moved up in Air Force Reserve Ranks Despite Light Duties, Wash. Post (Aug, 2, 2015), https://wapo.st/4088N7e. ↩︎
66. 6 Cannon’s Precedents, § 65. ↩︎
67. Griffin’s Case, 11 F. Cas. 7, 27 (C.C.D. Va. 1869) (No. 5815); Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 414 (2024). ↩︎