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Summary

The Incompatibility Clause of the U.S. Constitution states that no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. This provision is generally understood to ensure the separation of powers by preventing Members of Congress from serving in two government posts at one time. The prohibition on simultaneous service in multiple offices of the government prevents the individual from exercising influence of one branch while serving in the office of another. To avoid related constitutional violations, Members generally are required to resign their previous offices before being seated in Congress. The Incompatibility Clause often raises questions of the propriety of Members conduct in the context of military service, particularly service in the U.S. Armed Forces Reserves, and whether service in the Reserves would disqualify the Member from simultaneously serving in Congress. The Constitution also provides that each House shall be the judge of the elections, returns and qualifications of its own Members. In some cases, the House and Senate have exercised their authority under this provision to determine the eligibility of their Members to hold commissions in the military, including the Reserves. The central issue in determining whether a Member may simultaneously serve in the Reserves is whether a position in the Reserves constitutes an Office under the United States. This issue has been litigated in the courts and made its way to the U.S. Supreme Court in Schlesinger v. Reservists Committee to Stop the War. The Court resolved the case on procedural grounds, finding that the Reservists Committee did not have standing to raise the matter in court, and did not address the substantive constitutional claim. Other courts have dealt with related issues, including what positions constitute offices of the United States. Although Congress has taken action in some instances of Members service in the Reserves and courts have resolved some related challenges, the issue of whether a Member may serve in Congress and the Reserves simultaneously has never been clearly resolved. This report will analyze the legal issues related to Members of Congress serving in the Armed Forces Reserves during their congressional tenure. It will discuss previous congressional action regarding Members simultaneous service as well as federal legislation addressing the status of Reservists. It will also analyze court decisions related to challenges to simultaneous service.

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