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.
...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.
I'm a little confused. Are you suggesting that Sen. Lindsey Graham is a woman? Because he's not.
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?).
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.
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 (http://www.aclu-nca.org/pdf/LaneAmicus.pdf)
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!)
Article 3, Section 6 of the RI Constitution provides:
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:
The decision can be found at McKenna v. Williams, 874 A.2d 217 (R.I. 2005).
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.