Why is Joe Heck in the Army?

1803 was a significant year in testing the boundaries of the 14-year-old U.S. system of government. The U.S. Supreme Court handed down Marbury vs. Madison, the landmark ruling that became the foundation for the court’s authority.

President Jefferson sent his envoy James Monroe and U.S. Minister to France Robert Livingston to Paris to try to buy New Orleans. It was uncertain that presidents even had that authority. The two brought back the Louisiana Purchase, doubling the size of the United States.

And the United States House of Representatives expelled John Van Ness.

A New York lawyer, Van Ness was elected to the House in a special election caused by an 1801 vacancy. The next year, Jefferson appointed him to a militia post in the District of Columbia. He accepted but also continued as a member of the House.

The House had other ideas. The U.S. Constitution was clear—“no person holding any office under the United States, shall be a member of either House during his continuance in office” (article one, section six, clause two).

Van Ness said if the House excluded him, it “would mean the exclusion of militia officers of the States, since they were subject to the command of the United States.”

The House accepted that price. On Jan. 17, 1803, responding to the plea of Rep. John Randolph of Virginia that they vote “unanimously to exclude even the shadow of Executive influence,” the members of the House voted 88-0 to declare Van Ness’s seat forfeited.

It was the first time the issue of a military post clashing with a congressional office had arisen. It would not be the last. There was something about being in the military that made elections and re-elections easier. But until the 20th century, the House never flinched, and always made clear that militia and, later, reserves fell under the constitutional language. In 10 cases, eight members were expelled. The only ones spared were those who agreed to drop the other office.

There are two sections of the Incompatibility Clause, also called the Ineligibility Clause, of the U.S. Constitution. The section dealing with congressmembers and military service is the second: “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 increased 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.”

There was a considerable debate on the adoption of this language at the constitutional convention on Sept. 3, 1787, with a dozen delegates joining in. An initial version was defeated, five states to five. An amended version carried, five to four. It was very sweeping—“no person … any office.”

U.S. Rep. Joe Heck of Nevada is in the Army Reserve. He currently serves as deputy commanding general of the Third Medical Command Deployment Support. He is now also the Republican nominee for U.S. Senate. When he got into the campaign for the retiring Harry Reid’s seat, he told the Washington Post his concerns about the race. They included “making sure that I can participate and maintain my military commitment, which is very important to me.”

A tri-fold leaflet Heck hands out (see photo on page 14) reads on one of its faces:

“Joe Heck is a doctor and U.S. Army Brigadier General. Dr. Joe Heck is a U.S. Army physician and was called to active duty three times, including a deployment to Iraq, where he ran the emergency services section of a combat support hospital treating battlefield trauma cases. He was recently promoted to Brigadier General and can provide the leadership America needs in the War on Terror.”

In what appears to be six point type or smaller, the leaflet then goes on, “Use of Military rank, job titles and photographs in uniform does not imply endorsement by any service branch of the Department of Defense.” (This is six point type.)

On July 25, Heck’s campaign announced he would be doing two weeks of reserve duty and that 12 surrogates would fill in for him on his campaign. The news release read in part:

“Today kicks off two weeks of military duty for Republican U.S. Senate candidate Dr. Joe Heck, who, as a brigadier general in the Army Reserve, will be unavailable for his important race to replace the retiring Harry Reid. During that time, his campaign is asking surrogates and volunteers to go ’On Duty for Joe.’ ’When Dr. Heck is on military duty, he is unable to visit his fellow Nevadans, campaign, or refute his opponent’s attacks. That’s why he needs your help. Show your support on social media by going on duty for Joe and sign up to get involved, volunteer, and help propel us to victory in November,’ said Campaign Manager James Langenderfer, who, like Heck, is an Iraq veteran.”

It’s entirely possible that Heck could have done the two weeks of duty without the announcement and no one would have noticed he was gone from the campaign. But that would have sacrificed the political benefits of having a dozen surrogates fanning out across the state touting his military service.

In the 1800s, Congress steadfastly stopped any violation of the Incompatibility Clause. In the 1900s, the wall between military service and congressional service began to wear away. During World War I, the U.S. climate was very nearly fascist, and patriotism was enforced by the Espionage Act and private organizations. Prominent citizens including a presidential candidate were jailed for criticizing the war. The Nevada Council on Defense asked newsdealers not to carry Hearst Publications “under penalty of being considered unpatriotic,” and the federal court in Carson City denied Hearst an injunction or restraining order to overturn the council's action.

In that atmosphere, even members of Congress were reluctant to enforce the law against military service by their colleagues. One who opposed the mixing of the two roles, U.S. Rep. Finis Garrett of Tennessee, nevertheless said unseating such members would be “an ungracious thing to do.”

Precedent is powerful, and the Van Ness precedent had bound the House for three generations. Now it was being undercut by members who feared public reaction to being “ungracious.” (Very shortly, officialdom would fail to act on similar grounds when the president was disabled for more than a year, making clear the risks of failing to take necessary, unpopular steps.)

Even after the war ended, a red-baiting period began, which still constrained the members of Congress. There were objections when an Ohio member sought a “leave of absence” from his congressional duties for military training and the House directed the judiciary committee to inquire when any member’s military service was in conflict with his congressional duties. But the action came to nothing. As the nation became more militaristic, erosion of incompatibility continued. The issue drifted. It became another you-scratch-my-back arrangement in which legislators overlooked each other’s conduct so they could all partake. Individual members, instead of the whole Congress, sometimes decided the outcome of an issue that is of constitutional import.

Of course, there are two ways to remedy congressmembers serving in the military. Congress can expel them, or presidents or their appointees can remove them from military office. So far, all presidents have passed the buck to Congress.

During World War II, after researching the issue, Attorney General Francis Biddle advised President Franklin Roosevelt:

“The required conclusion is that under the practice, which appears to have long prevailed and which I see no occasion to disturb, Members of Congress may enter the armed forces by enlistment, commission or otherwise. Upon entry into such service the individual ceases to be a Member of the Congress provided the House or the Senate, as the case may be, chooses to act. There have, of course, been cases in which the congressional body affected did not choose to raise the question.”

He recommended that FDR avoid using members of Congress in the military.

President Jimmy Carter looked into the issue in 1977. At the time 25 members of Congress were in the reserves. One of Carter’s legal aides wrote a memo suggesting that the president leave it up to Congress, and the matter ended. Paradoxically, a president who probably found more ways to offend members of Congress than any other—he was famous for trying to kill their dam-building pork projects—was unwilling to do so on an issue of constitutional separation.

The World War II experience of one familiar name is revealing. Lyndon Johnson, a U.S. House member from Texas and protégé of President Franklin Roosevelt, enlisted after Pearl Harbor but did not resign from the House. He was commissioned a Navy lieutenant commander so he could “observe” the Pacific theatre for Roosevelt, received a Silver Star, then was pulled back to D.C. by a presidential order telling all members of Congress to leave the service.

The Johnson Silver Star is widely regarded as bogus. The citation says Johnson received the medal for “gallantry” because he showed “marked coolness” while riding, as an observer only, in a B-26 that may or may not have been threatened by eight Japanese fighter planes. (Crew members disagreed on whether there were fighters.) Not panicking is not generally regarded as grounds for gallantry awards, and Johnson biographer Robert Caro said Johnson was “in action for no more than 13 minutes [the plane turned back because of mechanical problems] and only as an observer. Men who flew many missions, brave men, never got a Silver Star.” The plot thickens in Robert Dallek’s biography. He wrote that the medal was part of a deal between Gen. Douglas MacArthur and Rep. Johnson. Johnson got the medal and promised to lobby the president to allocate more resources for MacArthur.

Who's going to buck a congressmember who's in a position to help or hurt the Navy when he's back in D.C.?

The issue goes both ways. Is a member of Congress going to buck an institution that can help him politically?

Nor are presidents the only ones who duck the issue. Judges have regularly done so. In the 1974 case Schlesinger vs. Reservist Committee to Stop the War, the U.S. Supreme Court was asked by antiwar members of the reserves to remove members of Congress from military offices. The court avoided the issue entirely by finding that the reservists lacked standing to bring the case.

In arguing that case, Solicitor General Robert Bork contended that members of Congress serving as reservists are not the “evil at which the [Incompatibility] Clause is directed.” That assumes we know the reasons every member of the constitutional convention had for supporting the Clause. Most of them did not express their views.

Through all of these years, there was virtually no question that congressmembers serving in the military held executive “offices” within the meaning of the Incompatibility Clause, though neither conservatives nor liberals made a cause of enforcing the constitution. Recognizing the conflict and enforcing the remedy had become two different things.

By the post-World War II period, enforcement of the Incompatibility Clause by Congress had completely gone by the wayside, though the conflicts still occasioned comment. Congress even enacted laws to accommodate the practice. By the time Heck arrived in the House, members may no longer have known there was a prohibition—Heck was not available to comment—but the conflicts of interest and the breach of the separation of powers are nevertheless apparent. (U.S. Sen. Harry Reid told us this week he was unaware of the prohibition.)

Three leading exemplars of the practice were U.S. Senators Howard Cannon of Nevada, Barry Goldwater of Arizona, and Strom Thurmond of South Carolina. All three served on the Senate Armed Forces Committee, which also prompted concern.

By 1963, Scripps Howard Newspapers reporter Jim Lucas could report that a whopping 175 members of the House and Senate held reserve commissions. House members Richard Bolling, a Democrat, and Gerald Ford, a Republican, responded with a joint statement: “The constitution is crystal clear that there should be no mixing of the executive and legislative responsibilities of any person.” Again, the niceties were observed, but the law was not enforced.

The Milwaukee Journal reacted to the Lucas reporting in an editorial:

“Congress now relies on a 1956 law to get around the constitutional prohibition. The law says a reservist is not to be considered a federal employee ’when he is not on active duty or when he is on active duty for training.’ However, the law has not been tested in court and there are at least half a dozen cases in which earlier congresses looked unkindly on reserve type service.’ … Early in the Civil War, the senate declared that when a member accepted a brigadier general’s rank in the volunteers he ’virtually resigned his seat in the senate and it became vacant at that time. … Even though reserve participation has become commonplace since World War II, a legal incompatibility seems to exist between service in congress and the reserve. Congress needs to rule clearly on it. At the same time congress should look into the matter of special consideration extended to congressmen-officers by the various services.”

In 1963, Goldwater said he had found a statute that said a reservist “is not considered to be an officer of trust or profit or discharging any function.” He seemed to be suggesting that a statute could override the Constitution.

Goldwater, who retired from the reserve in 1967, told this reporter in 1973 that he had decided his dual service was “inappropriate.”

The mixing of the roles of Congress and the military may now have implications the founders never saw in a nation whose economy is dominated by military spending.

One is whether the congressmember/reservists can separate their loyalty to the nation from their fidelity to their service, whose interests may not always be identical.

Last year, on grounds of the Incompatibility Clause and other legal restrictions, the Marines removed U.S. Sen. Dan Sullivan of Alaska from his assignment as a commander in the Marine Reserves. In discussing the change, he told Alaska Public Radio that being a reservist makes him more effective in the Senate to help keep his state’s military assets. What if his state’s interests are at odds with the nation’s needs?

Alaska Public Radio also reported, “Sullivan says separating his roles isn’t hard. He says he doesn’t criticize the president when he wears his uniform.” Criticizing a commander-in-chief is sometimes a congressmember’s function.

In the climate engendered by the “war on terror,” Congress forced local school districts to accept military recruiting unless parents opt out (“Special opts,” RN&R, Sept. 8, 2005). Some in Congress support privacy-invading tracking of military family children in school systems. Will a member of Congress feel free to buck the Pentagon on such issues—to say nothing of more pedestrian issues like pay, pension benefits and health care? The member will no doubt say yes, but must we take his/her word for it when an institutional remedy is available?

Moreover, there is the desire of some members of Congress to serve in theatres of war, which is highly marketable in political campaigns. Big names are one more thing for a field commander to keep track of that he or she doesn’t need. In 2003, the Bush administration declined to send U.S. Rep. and Army reservist Steve Buyer of Indiana to Iraq, angering him. (Heck served in Iraq, but not since he became a U.S. House member.)

A member of Congress serving in the military can also interfere with the smooth functioning of the services. In 2006 the U.S. Court of Appeals for the Armed Forces overturned a cocaine use conviction because one of the judges who sat on an initial appeal of the court martial was U.S. Sen. Lindsey Graham of South Carolina—an Air Force standby reserve lieutenant colonel. The court opinion (United States vs. Charles M. Lane) found that “the Incompatibility Clause—which prohibits a Member of Congress from ’holding any Office under the United States’—precludes a Member from serving as an appellate judge on a Court of Criminal Appeals—an ’office’ that must be filled by an ’Officer of the United States’.”

“History confirms that a reserve commission is incompatible with congressional membership,” wrote David J. Shaw in his 2009 Georgetown Law Review article “An Officer and a Congressman.”

He continued, “The debate over drafting and ratifying the clause reveals a consensus on the meaning of the clause. … Subsequent congressional failure to act does not obscure the clarity with which early Congresses spoke.”

No, but that failure certainly obscures the issue itself. It is off journalism’s radar. There seem to be few Jim Lucases today. When Heck was promoted to brigadier and the Las Vegas Review-Journal did a nostalgia piece on Cannon (“Nevada has already had a senator-general,” Sept. 14, 2015), it did not even mention the incompatibility issue.

Desuetude is a doctrine that laws or legal principles lapse and become unenforceable by non-enforcement over a period of time. Could a section of the United States Constitution lose its force through non-enforcement?