While the Ineligibility Clause prohibits persons serving in a federal executive or judicial branch office from simultaneously serving in Congress, it does not (nor does any other constitutional provision) prohibit simultaneous service in executive branch and judicial branch offices. As well as John Jay, Chief Justices
Oliver Ellsworth and
John Marshall also served dual executive and judicial offices in the early decades of the nation's existence. In 1945, Associate Supreme Court Justice
Robert H. Jackson was appointed to serve as U.S. Chief of Counsel for the prosecution of
Nazi war criminals at the 1945–46
Nuremberg trials. In 1964 Chief Justice
Earl Warren was appointed as chairman of the
commission formed to investigate the
assassination of John F. Kennedy. The Ineligibility Clause has resulted in some conflicts over potential appointments of Representatives and Senators to various
Cabinet posts and other federal government offices. Among the earliest questions to be addressed under the clause was whether a person serving as a
United States Attorney could continue to serve in that capacity after being elected to a seat in Congress. In 1816,
Samuel Herrick was elected to the
15th United States Congress while still serving as U.S. Attorney for the District of Ohio. He was not allowed to take his seat until the
House of Representatives had determined whether his service as a U.S. Attorney created a conflict under the clause. Finally, in December 1817, the
United States House Committee on Elections determined that there was no conflict, because even though Herrick had been elected to Congress, he had not taken the Congressional
oath of office while he was still serving as a U.S. Attorney. Unlike the incompatibility laws of many European countries (and in the
European Union institutions), the clause does not bar simultaneous service as a federal judge and member of the executive branch. The constitutionality of the practice is suggested not only by the lack of a textual prohibition, but by a few prominent examples of such service in the early days of the Republic, such the simultaneous service of Chief Justices
John Marshall,
John Jay, and
Oliver Ellsworth in judicial and executive posts. Nonetheless, examples of joint service in the executive and the judiciary have been a rarity in American history, and a strong tradition has developed disfavoring the practice. It is not clear if a member of Congress could hold a reserve commission in the armed forces (which fall under the Executive Branch), as the only case,
Schlesinger v. Reservists Committee to Stop the War, was never ruled on its merits due to lack of
legal standing. When Black's appointment was challenged in the Supreme Court, the court declined to hear the case, holding in
Ex parte Levitt that the petitioner lacked
standing. Perhaps the most widely known conflict involving this clause concerned the appointment of
Senator William B. Saxbe of Ohio to the post of
United States Attorney General by then-President
Richard Nixon, in the aftermath of the
Saturday Night Massacre. The salary of the Attorney General had been increased in 1969, in the first year of the Senate term that Saxbe was still serving in 1973. Nixon's solution was to ask Congress to reduce the Attorney General's salary to what it had been before Saxbe took office. This maneuver, known in legal and political circles as the
Saxbe fix, has been used a number of times since, though its legality is not universally agreed-upon. The
Justice Department's
Office of Legal Counsel is often called upon by the president to determine whether an appointment is in violation of the clause. This was necessary when President
Bill Clinton appointed
Bill Richardson as
United States Ambassador to the United Nations and
William Cohen as
Secretary of Defense, In none of these cases, however, was the appointee chosen by the president prohibited from taking office. In late 2008, the question was raised whether the clause would apply to the appointment of
Senator Hillary Clinton as
Secretary of State. Subsequently, Congress reset the pay for the position to its level prior to Clinton's election to the Senate. There has been very little academic commentary on the clause and virtually no judicial explication of it. The only two lawsuits brought challenging appointments under the clause have been dismissed on grounds of lack of standing. ==References==