Interpretation: Article I, Section 6 (2023)

Article I, Section 6 contains several clauses of major importance. It begins by specifying that senators and representatives will be paid by the United States Treasury Department and not by the states they represent, as was customary in the Articles of Confederation. This emphasizes that senators and representatives are employees of the federal government and not the state in which they were elected.

Article I, Section 6 also states that Senators and Representatives shall not be questioned in court or by the President about any speech or debate they give or participate in in the Senate or House of Representatives. This guarantees broad freedom of debate in Congress.

Article I, Section 6 also provides that Senators and Representatives shall not be appointed to posts whose salaries have been increased during their tenure in Congress. This waiver clause is a simple ethical rule that prevents members of Congress from raising the salary for a leadership position and then asking the President to nominate them for that position so they can benefit from the raise they voted for.

An interesting question raised by this clause is whether a senator or congressman who was serving in Congress when the salary for an executive position was increased can be appointed to that position if the salary for the position is subsequently raised original level is lowered. This scenario has happened several times in recent history. When it first surfaced, the question was whether President Richard Nixon could appoint Senator William Saxbe as his Attorney General, even though Congress had increased the salary for the position while Saxbe was a Senator (after salary returned to its normal level) . , Saxbe effectively took over). The so-called "Saxbe comparison" surfaced again in 1987 when President Ronald Reagan considered nominating Senator Orrin Hatch for the Supreme Court, even though judges' salaries had increased when Hatch was a Senator. In that case, the Justice Department's Office of Legal Counsel issued a statement saying that correcting Saxbe would render the appointment unconstitutional. More recently, however, the same Justice Department office came to the opposite conclusion, paving the way for President Barack Obama to nominate Hillary Clinton as secretary of state, even though the secretary's salary increased during her tenure. Senate.verJustice Department memos to attorneys general.

Finally, and most importantly, Article I, Section 6 states that "no person holding office in the United States shall during his tenure be a member of either house." This provision is of fundamental structural importance, as it prevents the appointment of powerful senators or congressmen to the office of president, thus reinforcing the separation of the legislative and executive branches. Without this incompatibility clause, powerful senators and lawmakers are likely to demand cabinet appointments, and the president would likely have to comply. This would create a kind of parliamentary government where the president is independent but all key state officials are congressmen. Thanks to the incompatibility clause, there is a separation of powers in the USAand staff segregation. The same individuals cannot exercise legislative and executive (or judicial) power at the same time. Members of Congress are prohibited from holding executive or judicial offices. For a more detailed discussion of this clause,verSteven G Calabresi and Joan L Larsen,One Person, One Position: Separation of Powers or Separation of Personnel?,79 Cornell L. Rev. 1045-1157 (1994); Jay Wexler,The Strange Clauses: Understanding the Constitution Through Ten of Its Strangest Provisions, Kap.1 (2012).

The question sometimes arises: What counts as "office under the United States"? For example, one scholar suggested thisthe position of President is not such a positionbecause the President is in the chaironethe executive rather than being an official in it. If this scholar were right (and none of us believe he is), then it would follow that the President of the Chamber of Deputies and the President pro tempore of the Senate could act as President without violating the incompatibility clause. What about members of the National Guard or reserve troops? Can one member of Congress serve in the reserve at the same time? In the 1970s, a federal court faced with this issue ruled that such an agreement violated the irreconcilability clause, but the Supreme Court later dismissed the case on the grounds that the plaintiffs were not entitled to address the matter. Therefore the problem remains unsolved.verSchlesinger v. reservists to end the war(1974).

The authors added the incompatibility clause to the constitution as a rule of constitutional ethics, and no one at the foundation foresaw the profound structural impact it would have on American government. British monarchs paved the way for control of the House of Commons in the 18th century, offering members of the House of Commons lucrative positions of leadership to secure members' votes on matters important to the king. The drafters of the US Constitution were repelled by this behavior and so added the incompatibility clause to the Constitution as an ethical rule to prevent such corruption in the United States. An unintended consequence of the authors' ethical incompatibility rule was that by making it unconstitutional for powerful members of Congress to demand cabinet appointments, it gave the president too much power.

There is no incompatibility clause for executive and judicial officers and as such there is a long history of judges in executive and judicial offices. Chief Justice John Jay therefore negotiated a peace treaty with Great Britain as ambassador; Chief Justice John Marshall served simultaneously as Secretary of State and Chief Justice in February 1801; Judge Robert Jackson was the Nazi-allied chief prosecutor at the Nuremberg trials; and Chief Justice Earl Warren served as head of an executive commission, the Warren Commission, investigating who was involved in the assassination of President John F. Kennedy. The American Bar Association disapproves of joint judge and executive office for obvious ethical reasons, and no judge has recently held executive office.

There is also no federal constitutional incompatibility clause that stands in the way of the joint exercise of federal and state offices. However, many state statutes prohibit it. Most modern constitutions have strict incompatibility clauses based on the sensible principle of one person, one office.

The incompatibility clause of Article I, Section 6 may be broad, but it is perhaps the main reason why the US never developed a parliamentary system of government. Because members of Congress are barred from holding senior positions, they have created a very powerful system of parliamentary committees that oversee every division of the presidential cabinet. The Senate and House Committees on Foreign Relations oversee the State Department, just as the Senate and House Judiciary Committees oversee the Justice Department. The system of congressional committees is the stunted growth of a parliamentary government in the United States that cannot exercise executive power because the incompatibility clause prevents congressional committee chairs from calling for cabinet appointments. Thus, the incompatibility clause guarantees an independent executive power headed by the President of the Republic and is one of the most important, albeit overlooked, clauses of the Constitution.