The Incompatibility Clause (not to be confused with the Ineligibility Clause) provides:
…no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
The purpose of this provision of the Constitution is to prevent Officers of the United States from serving as members of the House of Representatives or the Senate. Curiously, it does not prohibit simultaneous service between the Executive Branch and the Judiciary. (That is how John Marshall served as both Secretary of State and Chief Justice at the same time).
After reading an editorial in the WSJ by Justice O’Connor and John Glenn on the importance of civic education (btw, is that a graphic of the Constitution with bullets?), a thought occurred to me: John Glenn served as a United States Senator until 1999; in 1998 he returned to space on a NASA flight as a “payload specialist” while he was still a Senator.
Here is how NASA defines the “Payload Specialist.”
Payload specialists are persons other than NASA astronauts (including foreign nationals) who have specialized onboard duties; they may be added to shuttle crews if activities that have unique requirements are involved and more than the minimum crew size of five is needed.
First consideration for additional crew members is given to qualified NASA mission specialists. When payload specialists are required they are nominated by NASA, the foreign sponsor, or the designated payload sponsor. In the case of NASA or NASA-related payloads, the nominations are based on the recommendations of the appropriate Investigator Working Group (IWG).
Although payload specialists are not part of the Astronaut Candidate Program, they must have the appropriate education and training related to the payload or experiment. All applicants must meet certain physical requirements and must pass NASA space physical examinations with varying standards depending on classification.
Is a “Payload Specialist” an “Office under the United States”? If so, John Glenn violated the incompatibility clause.
I could not find how “Payload Specialists” are usually nominated by the “Investigator Working Group,” but this case seems special. It has been reported that President Clinton allowed Glenn to travel with NASA as a favor.
The Washington Post reported:
This became clear last January, when NASA announced that it had approved Glenn’s persistent requests for another space flight. The few criticisms suggesting that the move was a payoff for Glenn’s support of President Clinton and that NASA’s scientific rationale for sending him was hollow got drowned out.
Same from the New York Times:
For the political groundlings the Senator will leave down here, undoubtedly there will be a guessing game as to precisely how Mr. Glenn mastered the politics at NASA and won his heart’s delight. Some are already noting, for example, that the Senator has been the chief Democratic defender of President Clinton in the Republican Senate’s inquiry into campaign finances.
Clinton alludes to the role he played in the mission in his memoir, My Life:
At around that time, I also flew to the Johnson Space Center in Houston to discuss our newest shuttle mission to conduct twenty-six experiments on the impact of space on the human body, including how the brain adapts and what happens to the inner ear and the human balance system. One of the crew was in the audience, seventy-seven-year-old senator John Glenn. After flying 149 combat missions in World War II and Korea, John had been one of America’s first astronauts more than thirty-five years earlier. He was retiring from the Senate and was itching to go into space once more. NASA’s director, Dan Goldin, and I were strongly in favor of Glenn’s participation because our space agency wanted to study the effects of space on aging. I had always been a strong supporter of the space program, including the International Space Station and the upcoming mission to Mars; John Glenn’s last hurrah gave us a chance to show the practical benefits of space exploration.
This is precisely the sort of risk the incompatibility clause was aimed at eliminating.
To dig into this question further, I asked Seth Barrett Tillman, a Lecturer at the Maynooth University Department of Law for his thoughts. Seth generously offered these comments, which I found really insightful:
The proscription of the Incompatibility Clause includes both principal and inferior officers. If Glenn was an inferior officer while a Senator, then that was a constitutional violation. The difficult question is what constitutes an “office under the United States” as used in the Incompatibility Clause. It has been argued that an officer is a policy-making position exercising some part of the sovereign or law-making/law-interpreting/law-enforcing authority of the federal government. If this is correct, a mere “employee” (even if a full-time federal civil servant) might be outside the ambit of the clause. Certainly there is a rich tradition suggesting that ad hoc positions and contractors are outside the ambit of the clause. United States v. Maurice (Marshall, C.J., C.C.D. Va. 1823).As I remember, the United States Court of Appeals for the Armed Forces, in US v Lane (2006) (Gierke, C.J.), citing the Incompatibility Clause, held that a military court is improperly constituted if it includes a sitting US Senator. As such Lane’s conviction was overturned on appeal. In Lane, Senator Graham had acted as a military judge in the trial court proceedings. A judge is clearly an “officer” for Appointments Clause and Incompatibility Clause purposes. But what if a member of Congress were also an enlisted person, i.e., a non-officer for the purposes of military rank? Is an enlisted person in the military (like a non-policy making civil servant) an “officer” for Incompatibility Clause purposes? The question is not obvious. Arguments can be made both ways.Argument: An Enlisted Person is an “officer” for Incompatibility Clause purposes. Such a person is under the thumb of the President. He is subject to presidential orders, and as such the President can demand his service and keep him from attending the session of Congress. The clash of loyalties between the two branches imposes on the member’s independence. The chance of promotion makes him a placemen of the President. In other words, the primary purpose of the clause is furthered by treating enlisted military persons (and, perhaps, federal civil servants) as under the scope of the clause.Argument: An Enlisted Person is not an “officer” for Incompatibility Clause purposes. Like a civil servant, an enlisted person is not an officer for Appointments Clause purposes — such a person is not appointed by the President with Senate advice and consent, by the President acting alone, by a head of department, or by a court of law. Thus the person is not an “officer” under the Appointments Clause or under the Incompatibility Clause. Such a person is not an “officer” because he does not exercise any sovereign authority of the United States nor any discretionary policy-making authority. This position would be supported by the Supreme Court’s decision in United States v. Hartwell (1867). Also early U.S. Executive Branch documents apparently distinguished “officers under the United States” from “employees under the United States.” I would embrace this position, notwithstanding that a member of Congress-federal enlisted person, and that a member of Congress-federal civil servant would face conflicts akin to those which the Incompatibility Clause was designed to prevent. Why? At the end of the day, the phrase “office under the United States” as used in the Incompatibility Clause carries a world of (original public) meaning that limits the scope of the clause.FWIW: I have argued that “office under the United States” as used in the Incompatibility Clause does not reach the presidency or vice presidency. Not all agree. See, e.g., Akhil Reed Amar, The Law of the Land: A Grand Tour of our Constitutional Republic 332 n.8 (2015) (stating, without any equivocation or acknowledgment of contrary views, that: “[t]he presidency is an ‘Office under the United States,’ and thus no sitting House or Senate member may serve as president” (emphasis added)), available at http://tinyurl.com/mgdemov; Saikrishna Bangalore Prakash, Imperial From The Beginning: The Constitution of the Original Executive 48 (2015) (“[W]hile a president may not simultaneously sit in Congress, the Constitution left open the possibility that a president also could serve as state governor or as a Supreme Court justice.”), available at http://tinyurl.com/kv5w7ye; Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, inSeth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 143 (2008) (stating that “the President is most certainly an officer under the United States” (emphasis added)).I have also argued that the “office under the United States” in the Incompatibility Clause includes Congress’ internal “officers” such as the Secretary of the Senate and Clerk of the House, whereas most modern commentators have taken the position that “office under the United States” extends only to positions in the Executive Branch and Judicial Branch.
More likely than not, Glenn’s position as a “payload specialist” was not an “office under the United States,” so there are no incompatibility clause problems. But under the circumstances, President Clinton seems to have been directly involved in Senator Glenn’s selection for the position, which raises the specter of influence the clause was aimed at eradicating.