[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[C. Qualifications and Disqualifications]
[Â§ 14. Military Service]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 780-785]
 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 14. --Military Service

    Early Congresses determined that active duty with the United States 
Armed Forces was incompatible with congressional 
membership.(10) On many occasions, the House has declared or 
assumed vacant the seats of Members who have accepted officers' 
commissions in branches of the

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armed forces.(11) The practice has not, however, been 
uniform, and on some occasions involving the military service of 
Members the House has taken no action.(12)
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10. See 1 Hinds' Precedents Sec. Sec. 486-492, 494, 500, 504.
11. See, for example, 1 Hinds' Precedents Sec. Sec. 486, 488, 490.
12. 40 Op. Att'y Gen. 301 (1943). ``Under the practice which has long 
        prevailed, Members of Congress may enter the Armed Forces by 
        enlistment, commission, or otherwise but thereupon cease to be 
        Members of Congress provided the House or the Senate, as the 
        case may be, chooses to act.''
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    During and immediately prior to World War II, the House permitted 
Members to hold officers' commissions, to attend training while the 
House was in session, and to be absent from House proceedings for 
military duties.(13) But when the President during the war 
took action to compel congressional Members to make an election between 
serving in the Congress and serving in the military,(14) 
some Members returned to the House and others resigned or otherwise 
left Congress in order to serve in the armed forces.(15) 
Congressional salary was not paid to those Members absent during World 
War II for military service.(16)
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13. See Sec. Sec. 14.4, 14.5, infra.
14. See Sec. 14.3, infra.
15. See Sec. 14.6, infra.
16. See Sec. 14.7, infra.
            Subsequent to World War I, the House passed a resolution 
        authorizing the back-payment of salaries to Members who had 
        been absent for military service (see 6 Cannon's Precedents 
        Sec. 61).
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    An unresolved issue relating to incompatible offices and military 
service is the status of Members of Congress who hold reserve 
commissions in branches of the armed forces. Congress has declined on 
several occasions to finally determine whether active service with the 
reserves is an incompatible office under the United 
States.(17) In 1965, however, the Department of Defense 
stripped all Members of Congress and some congressional employees of 
their active reserve status.(18)
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17. See Sec. 14.1, infra, and 6 Cannon's Precedents Sec. Sec. 60-62.
18. See Sec. 14.2, infra.
            Where a federal court held that a Member of Congress could 
        not hold a commission in the armed forces reserve under art. I, 
        Sec. 6, clause 2, the Supreme Court reversed on grounds 
        relating to the plaintiff's lack of standing to maintain the 
        suit. Reservists' Committee to Stop the War v Laird, 323 F Supp 
        833 (1972), aff'd 595 F2d 1075 (1972), rev'd on other grounds 
        418 U.S. 208 
        (1974).                          -------------------
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Service in Armed Forces Reserves

Sec. 14.1 A Senate resolution introduced in the 88th Con

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    gress, to effectuate an inquiry into the possible incompatibility 
    between serving simultaneously in the armed forces reserves and in 
    the Congress, was not acted upon by committee or by the full 
    Senate.

    On May 15, 1963, Senator Barry Goldwater, of Arizona, introduced 
Senate Resolution No. 142, ``to make inquiry whether the holding by a 
Member of the Senate of a Commission as a Reserve member of any of the 
armed forces is incompatible with his office as Senator''; the 
resolution was referred to the Committee on the 
Judiciary.(19) Senator Goldwater introduced the resolution 
in order to have the Congress finally settle an issue which had never 
been determined.(20)
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19. 109 Cong. Rec. 8764, 88th Cong. 1st Sess.
20. See Senator Goldwater's explanation of the resolution and analysis 
        of historical developments at 109 Cong. Rec. 8715-18, 88th 
        Cong. 1st Sess., May 15, 1963.
            The resolution was amended on May 15 to include studying 
        the incompatibility of a Senator serving on the United Nations 
        delegation. 109 Cong. Rec. 8843.
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    On July 24, 1963, Senator Goldwater arose to state that the 
Committee on the Judiciary had yet failed to take any action on the 
resolution.(1) He stated that since the committee was 
failing to act, he was independently investigating the issue, with the 
conclusion that reserve commissions were not incompatible offices. He 
reviewed the legislative history of an Act of July 1, 1930, which he 
said supported his view that service in the reserves was not 
incompatible with service as a Senator.
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 1. 109 Cong. Rec. 13211, 88th Cong. 1st Sess.
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Sec. 14.2 A Senator proposed and then withdrew an amendment in the 89th 
    Congress to block a Defense Department order which deactivated 
    Congressmen then serving in the active reserves.

    On Apr. 6, 1965, during Senate debate on a military procurement 
authorization bill, Senator Howard W. Cannon, of Nevada, offered an 
amendment to counteract a Department of Defense directive of Jan. 16, 
1965, No. 1200.7, which had ordered all Members of Congress out of the 
Active Reserve and into the Standby or Retired Reserve.(2)
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 2. 111 Cong. Rec. 7097, 89th Cong. 1st Sess.
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    Senator Cannon stated the reason for his amendment as follows:

        With reference to Members of the legislative branch who also 
    may be

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    members or former members of the Ready Reserve, their requirements 
    for military service should be the subject of a Presidential 
    determination, as they were in World War II. The premise underlying 
    the Defense Department order is in error; namely, that a Member of 
    the Senate or the House of Representatives . . . is unfit not only 
    to serve in the Ready Reserve, but also to decide for himself 
    whether he can best serve his country at a time of national crisis 
    as a legislator or as a member of the Armed Forces on active duty.

    Senator Cannon later withdrew his amendment, upon assurance his 
objection would be considered by the committee handling the 
bill.(3)
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 3. Id. at p. 7101.
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Action of Executive Branch

Sec. 14.3 During World War II, the President recalled to Congress 
    Members then serving in the armed forces, after the Department of 
    War and the Department of the Navy stated their opposition to such 
    simultaneous service.

    On June 1, 1942,(4) there were inserted in the Record 
letters written by Secretary of War, Henry I. Stimpson, and Secretary 
of the Navy, Frank Knox, addressed to the Speaker of the House, 
opposing the enlistment or commissioning of Members of Congress in the 
armed forces and stating that a Member of Congress could render greater 
services to the Nation by continuing to represent the people rather 
than by serving with the armed forces.
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 4. 88 Cong. Rec. A-2015, 77th Cong. 2d Sess.
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    The letters stated that activation of Members who held reserve 
commissions would be discouraged, and applications for enlistment by 
Members would be disapproved.

    During 1942, the President began recalling to Congress those 
Members presently absent on active military service.(5)
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 5. See, for example, the remarks of Mr. Albert L. Vreeland (N.J.) on 
        July 30, 1942, 88 Cong. Rec. A-2993, 77th Cong. 2d Sess.
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    In 1943, the Attorney General advised the President as follows:

        It would be a sound and reasonable policy for the Executive 
    Department to refrain from commissioning or otherwise utilizing the 
    services of Members of Congress in the armed forces, and the 
    Congress by exemptions in the Selective Training and Service Act of 
    1940 has recognized the soundness of this policy.(6)
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 6. 40 Op. Att'y Gen. 301 (1943). The opinion stated that both the 
        House and the Senate had, on some occasions in the past, 
        determined that service with the armed forces was incompatible 
        with congressional membership.
            For the statutory draft deferment of Congressmen referred 
        to, see Selective Training and Service Act of 1940, 54 Stat. 
        885, Ch. 720, Sec. 5(c)(1).

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[[Page 784]]

World War II Service

Sec. 14.4 During and immediately prior to World War II, Members were 
    allowed to hold officers' commissions and to attend military 
    training while the House was in session.

    On June 10, 1941,(7) the House granted a leave of 
absence to Mr. James G. Scrugham, of Nevada, presently a lieutenant 
colonel in the Officers Reserve Corps, to attend three weeks of 
military training.
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 7. 87 Cong. Rec. 4991, 77th Cong. 1st Sess.
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    Similarly, on Oct. 23, 1941,(8) the House granted by 
unanimous consent indefinite leave of absence to Mr. Dave E. 
Satterfield, Jr., of Virginia, for temporary active duty as an officer 
in the Naval Reserve.
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 8. 87 Cong. Rec. 8210, 77th Cong. 1st Sess.
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Sec. 14.5 During World War II, no objections were voiced to the absence 
    of Members-elect and to the delay in their taking the oath because 
    of overseas duty with the armed forces.

    On Jan. 4, 1945,(9) an announcement was made that Mr. 
Henry J. Latham, of New York, would be delayed in taking the oath until 
the month of February, since he was presently a lieutenant in the Navy 
and on duty in the South Pacific. No objection was raised in the House 
to Mr. Latham's absence.
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 9. 91 Cong. Rec. 34, 79th Cong. 1st Sess.
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    On Mar. 7, 1945,(10) Mr. Albert A. Gore, of Tennessee, 
appeared to take the oath of office in the 79th Congress. He had been 
re-elected to the 79th Congress after resigning his seat in the 78th 
Congress in order to serve overseas with the armed forces.
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10. 91 Cong. Rec. 1859, 79th Cong. 1st Sess.
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Sec. 14.6 During World War II, after the executive branch had voiced 
    opposition to the simultaneous military service of Members of 
    Congress, some Members resigned their seats, or did not seek re-
    election, in order to serve with the armed forces.(11)
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11. According to Senator Howard W. Cannon (Nev.) in remarks on Apr. 6, 
        1965, of the 20 Members of Congress who had gone on active duty 
        during World War II before the President determined they should 
        be recalled, 12 either resigned or otherwise left the House in 
        order to serve. 111 Cong. Rec. 7097, 89th Cong. 1st Sess.

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[[Page 785]]

    During World War II, the Departments of the War and Navy stated 
their opposition to Members of Congress serving in the military, and 
the President began recalling to Congress Members who were commissioned 
or had enlisted.(12)
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12. See Sec. 14.3, supra.
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    Some Members who were then in the armed services, and some who 
wished to join, then resigned from the House or did not seek 
reelection, in order to serve with the armed forces.(13)
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13. See 90 Cong. Rec. 8990, 78th Cong. 2d Sess., Dec. 7, 1944; 90 Cong. 
        Rec. 8450, 78th Cong. 2d Sess., Nov. 27, 1944; 90 Cong. Rec. 
        8201, 78th Cong. 2d Sess., Nov. 20, 1944; 89 Cong. Rec. 8163, 
        78th Cong. 1st Sess., Nov. 14, 1943; 89 Cong. Rec. 7779, 78th 
        Cong. 1st Sess., Sept. 23, 1943; and 88 Cong. Rec. 7051, 77th 
        Cong. 2d Sess., Sept. 7, 1942.
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Sec. 14.7 During World War II, the Sergeant at Arms of the House did 
    not disburse compensation to those Members who were presently on 
    leaves of absence and serving in the military.

    In accordance with an opinion given him by the Comptroller General, 
Kenneth Romney, Sergeant at Arms of the House, did not pay 
congressional salary to those Members of the House who were during 
World War II on leaves of absence because of service in the Army and 
Navy.(14)
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14. See H. Rept. No. 2037, from the Committee on House Accounts, to 
        accompany H. Res. 512, 79th Cong. 2d Sess.

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