Happy Mother’s Day!

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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13 Responses

  1. Shag from Brookline says:

    Regarding LBJ in the military, I recall that he went on a flight to the Pacific theatre of war during WWII with other members of Congress and there resulted a claim subsequently that he had served in the military overseas.

  2. Joe says:

    “ordered” … The details would be useful. Presidents repeatedly hint what they want to do w/o pressing the point. He was c-i-c. He could have required those who insisted on serving to do duty in some backwater. “Order” is probably not technically what happened. He made it known what he wanted.

    FDR led this way often enough.

  3. Gerard Magliocca says:

    Right. No issue if it was only a strong suggestion.

  4. Brett Bellmore says:

    “My question is why does the President have the authority to tell members of Congress that they cannot serve in the active military? Sure, he’s the Commander-in-Chief,”

    Answered your own question there. There’s no “but” to it.

  5. Joe says:

    Either way, I admire those who manage to get thru those tomes.

  6. Gerard Magliocca says:

    Well, are you saying that the President can exclude anyone from active service? If not, what is the limiting principle? I would say that a member of a coordinate branch should not be included, though you could say that’s only true if there is statutory authority.

  7. What about the incompatibility clause (Article I, Sec. 6, Clause 2):

    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.

    It would be unconstitutional for a person to serve in the Legislative Branch and as an officer in the Executive Branch (including officers in the armed forces). Though someone can serve in the Executive and Judicial Branches (see Chief Justice John Jay, who also served as a Diplomat abroad).

  8. Shag from Brookline says:

    Hasn’t the incompatibility clause issue been raised regarding members of Congress who serve in military reserves, at least when they are on active duty? I don’t think the issue has been fully resolved.

  9. Gerard Magliocca says:

    I thought that the Emoluments Clause applied only to military officers, not those who enlist and serve on the front lines.

  10. Shag from Brookline says:

    The Lyndon Baines Johnson Library and Museum website has an interesting post: “President Lyndon Baines Johnson’s Military Service.”

  11. Joe says:

    That is one of those “odd clauses” (to cite a recent book) that hasn’t been clearly determined.


    A military officer is tricky but an enlisted person would probably be an easier call. Though not w/o doubt.

    As to who the President can order not to be in “active service,” as shown in respect to women, the ‘limiting principle’ can be reasonableness (putting aside race etc.) FDR could have, e.g., determined various professions were necessary for domestic needs, not allowing those licensed in those professions to serve. They could still serve in state service, that up to state discretion.

  12. Shag from Brookline says:

    Here are some excerpts from the website noted in comment #10:

    “On June 21, 1940, Lyndon Johnson was appointed Lieutenant Commander in the U.S. Naval Reserve (USNR).”
    “On July 16, 1942, Johnson was released from active duty under honorable conditions. (President Roosevelt had ruled that national legislators might not serve in the armed forces). On October 19, 1949, he was promoted to Commander, USNR, his date of rank, June 1, 1948. His resignation from the Naval Reserve was accepted by the Secretary of the Navy, effective January 18, 1964.”

    In between are details of his military service, including medals awarded.

  13. mls says:

    It doesn’t seem that puzzling to me. True, the Incompatibility Clause does not literally apply to military service as a non-officer, but the conflict seems equally clear. Even though the Clause does not cover state offices, the House has required Members to relinquish such offices if they want to keep their seats. It seems pretty reasonable to insist that Members choose between serving in the war and serving in Congress.