Happy Mother’s Day!

My blogging break is done.  Good thing nothing happened while I was away. (Just kidding.)

Over the past few weeks, I read Robert Caro’s brilliant (and massive) four volumes on Lyndon Johnson. The fourth one, which covers 1958-1964, came out two weeks ago.  I did this for a few reasons.  First, I thought that this would help me as I revise the Bingham book. Working for three years a biography feels like a massive project to me, but consider that Caro has spent more than thirty-five years on LBJ!  Second, the portion on LBJ’s Senate career contains powerful insights on how Congress works. I’ve written about the Senate filibuster before, and now I’m thinking of moving to the committee structure and rules that relate to party discipline in both Houses.  More on that later this week.

Here’s a small point that I found interesting from a constitutional perspective. After Pearl Harbor, about eight members of Congress (including LBJ) enlisted in the Armed Forces without resigning their seats. In 1942, FDR ordered those members to return to politics, on the ground that their service there was more valuable.  Some complied, and others quit the House so that they could serve in battle.

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, but such an order would seem to intrude unduly on the prerogatives of members of another branch and of the voters who choose them.  It’s not a problem that’s likely to recur, but it’s puzzling.





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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.