Sam Spade v. Colin Wixted

[Sam Spade]

Claim:  That Colin Wixted has violated Article V, Section 1 of the Constitution by holding the positions of Senator and Major General simultaneously.

The clause states:
No person may simultaneously hold two or more offices of the Republic of Atlasia at any level of the government.

Relief:  That the court order Colin Wixted to resign one or both of these positions immediately.

[Sam Spade]

In furtherance, I would like to request a Preliminary Injunction with this court to prevent Colin Wixted from being appointed to the position of Major General as being in violation of the above-stated clauses of the Constitution.

[Colin]

I will state my case before the court after I have taken legal council from several sources. If it comes to pass that this court finds I cannot hold both positions I would resign the office of Senator in order to try and restore order to the nation and to fulfil the statement of the laws against those who would wish to see Atlasia torn asunder.

[TomC]

I'd prefer the Chief Justice have first option on the injunction.

I would like to ask a question or two, though, to get things rolling as we see if at least two of us agree to hear the case. Both parties feel free to answer.

First, is "Major General" a federal office in Atlasia? If so, what authority has made it a  federal office?

Second, if it is a constitutional office, or even one created by the Senate under its delegated powers, would an appointed general have to take an oath, since Article V also requires "In order to exercise their powers, all officers of the Federal government must first be sworn into office. "

Third, though this is the first case, in the past, other officers have taken on the role of General at the same time. For example, General Caldwell was both Governor and General at the same time. Was he in violation of the same clause now invoked?

[Colin]

First, is "Major General" a federal office in Atlasia? If so, what authority has made it a  federal office?

No it is not a federal office. I was asked by the President to oversee military operations within New Mexico do to the fact that the President admitted that he has a limited knowledge of military affairs. Then in order to have any authority over the military I would have to be a comissioned officer so I was comissioned into the Atlasian Army as a Major General at the behest of the Commander-In-Chief. The only way I could construe that this is a federal office is that I was asked and given the job by the President however when the President, say, appoints advisors in other matters, like the Council on Economics, President's have appointed people who were not citizens or were also members of other governmental entities. I see this position as no more than the other special appointed positions that President's sometimes create. Saying that a sitting Senator cannot perform these duties would also mean that no governmental officer could ever be appointed as Presidential advisers or to any other position created by the President and appointed by him.

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The only place in the constitution that mentions an armed force or a military is in the powers of the Senate stating that they can raise an armed force and regulate it. Now you could state that these regulations can come from American law however I think Army regulations, which number in the thousands, which are well needed in the real-world have absolutely no bearing upon the military of a fictitious and completely internet based state. The dynamics are different and as such I think any prior regulations upon the military should not be directly admissable.

It would be within the Senate's power to create such a position through its ability to regulate the armed forces however the President, as Commander-In-Chief, can just as easily ask a citizen such as myself to be comissioned as an officer in order to take over the role directly. I'm sure the President would have taken over direct control of the situation if he was more versed in military affairs. As he is not and has never claimed to be he asked me to take over as his commander for affairs in New Mexico.

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I believe that this is the same sort of thing. If prior officers, including Preston Caldwell several times including now, can act as military officers and give themselves or be given ranks within the Armed Forces of Atlasia than I do not consider what was bestowed upon me anything different.

Overall this is not an office of Government, it is never once stated in the Constitution, nor is the precedent completely clear. It seems to me that this position would be outside of the governmental sphere as it is a military position and seperate from any government duties. Just as a newspaper publisher or a GM are technically outside of the government. While we do have regulations concerning the GM and how the GM is appointed and who may be appointed no such regulations exist, as per the Senate's power to regulate the military, for bestowing army ranks and commands onto people currently in government offices.

[Sam Spade]

First, is "Major General" a federal office in Atlasia? If so, what authority has made it a  federal office?

Second, if it is a constitutional office, or even one created by the Senate under its delegated powers, would an appointed general have to take an oath, since Article V also requires "In order to exercise their powers, all officers of the Federal government must first be sworn into office. "

Third, though this is the first case, in the past, other officers have taken on the role of General at the same time. For example, General Caldwell was both Governor and General at the same time. Was he in violation of the same clause now invoked?

Let me address all three questions together, as that would seem appropriate in the situation.

First, a plain reading of the text indicates that the office requirement applies to both Regional and Federal officers.  The language of Clause 1 uses the text, "at any level of government", construing a broad interpretation of the phrase.  Also, the limiting words "federal government" or "federal officers" are not to be found within this provision.  There is no rational basis within the text of the Constitution or this section to read such words into the text of this clause.  Furthermore, Clause 2 of this section states that, "In order to hold office, an official of either the federal or Regional government must retain an avatar".  The implication is that both officials of the federal and regional government hold office, and are therefore subject to the requirements of Clause 1.

Therefore, it seems clear that Preston Caldwell's actions would fall under the text of this clause.  But that is not the case before the court.

Second, Congress has already created statute for such officers and specifications under 10 USC § 531(a)(2) Original appointments of commissioned officers

(2) Original appointments in the grades of major, lieutenant colonel, and colonel in the Regular Army, Regular Air Force, and Regular Marine Corps and in the grades of lieutenant commander, commander, and captain in the Regular Navy shall be made by the President, by and with the advice and consent of the Senate.

Major General in the Regular Army clearly falls under this statute and according to general provisions in Subtitle B, also constitutes an officer position to where such an office for the position is created.  It is not a Constitutional office; nowhere in the wording or plain meaning of Article V, Section 1 is a meaning to that term implied by such language.  This is an federal executive office created by the Article I, Section 8, Clause 26 powers of Congress.  If Colin were to be approved of by the Senate, he would have to take the Oath of Office, as all federal officers must do.

Third, as a policy consideration, I would like the Court to consider the implications of a citizen serving simultaneously in the legislative and executive branches upon the separation of powers provided for in the Constitution.  Our Constitution gives Congress the sole power in Article I, Section 8, Clauses 18-24 to declare War and to provide for the common Defense by funding our armies.  Additionally, Congress is given the power to suspend Habeas Corpus per Clause 29 of this Section.

By allowing a member of the Senate to serve in the armies, as an appointment of the President would allow undue influence upon the Legislature in its sphere of influence.  It could allow considerable influence by the Executive over the Legislature in such matters as the Constitution expressly prohibits it to do so, such as suspension of habeas corpus or the appropriation of funds.

[Brandon H]

I'm not part of this case, but I have a couple of questions.

Granted all of this is a game and all actions take place on a computer. But if this were real, would it be realistically possible for one to serve as both a Senator and a General?

Also, is there any real life U.S. precedent regarding a person serving as both a member of Congress and a general in the military?

[Sam Spade]

Considering that the executive action causing this claim has ceased, I will withdraw my case.

Still, these are issues that need not to be evaded in the long-run, but rather litigated.

[True Federalist (진정한 연방 주의자)]

Granted all of this is a game and all actions take place on a computer. But if this were real, would it be realistically possible for one to serve as both a Senator and a General?

Also, is there any real life U.S. precedent regarding a person serving as both a member of Congress and a general in the military?

There have been a number of Congress critters who have had, and even a few who still hold reserve appointments, so obviously there is precedent.  I'm not certain how they finesse Article I Section 6 Clause 2.  Since the rule would seem to be that as a military officer it's OK to be a Congress critter but not the reverse, perhaps they've just been ignoring the problem under Article I Section 5 Clause 1 which gives Congress the right to decide if its members meet the qualifications.

[TomC]

I will withdraw my case.

Bummer

[MAS117]

Granted all of this is a game and all actions take place on a computer. But if this were real, would it be realistically possible for one to serve as both a Senator and a General?

Also, is there any real life U.S. precedent regarding a person serving as both a member of Congress and a general in the military?

There have been a number of Congress critters who have had, and even a few who still hold reserve appointments, so obviously there is precedent.  I'm not certain how they finesse Article I Section 6 Clause 2.  Since the rule would seem to be that as a military officer it's OK to be a Congress critter but not the reverse, perhaps they've just been ignoring the problem under Article I Section 5 Clause 1 which gives Congress the right to decide if its members meet the qualifications.

In RL, Senator Lindasy Graham is a member of the Air Force Reserves. He is a full Colonel and a member of the JAG Corp. It was ruled recently that he could not become a Military Judge against of seperation of powers.

[Emsworth]

Also, is there any real life U.S. precedent regarding a person serving as both a member of Congress and a general in the military?

Precedent strongly suggests that one cannot simultaneously be an officer of the military and a member of Congress. This was definitively settled in 1803, when Representative John Van Ness was made a major in the militia. Even though Van Ness said that his position was unpaid, and that there was no danger of executive influence corrupting him, the remainder of the house voted unanimously to declare him disqualified. Any further doubts were cleared away in 1861, when the Senate decided to follow the same rule. When Senator James Lane became a Brigadier-General, a Senate committee emphatically declared, "the office of brigadier-general under the United States is incompatible with that of member of either House of Congress. By accepting the office of brigadier-general, the sitting member, Mr. Lane, virtually resigned his seat in the Senate, and it became vacant at that time."

These precedents seem to be quite consistent with the actual text of the Constitution. Where the Constitution wishes to draw a distinction between civilians and members of the military, it does so quite clearly. For instance, only "civil Officers of the United States" are subject to impeachment, thereby clearly excluding the possibility of impeaching admirals, for example. On the other hand, the disqualification clause does not use the word civil, and hence embraces both types of officials.

As to the few modern members of Congress who apparently also hold military office, I can only say that each house seems to be ignoring both the Constitution and its own precedents. One should not draw any inference from these actions, however, just as one should not draw any similar inference from the fact that men below the age of thirty have previously sat in the Senate.

[Sam Spade]

Emsworth, is it possible that Congress and maybe the Constitution (though the evidence would be scant) is making a distinction between those members of Congress who are members of the military in active duty, as opposed to those who are only the members of the Reserves?

[Emsworth]

Whether service in the reserves is incompatible with membership of Congress is an issue that has never been resolved by either house. In 1963, the Senate referred the issue of compatibility between service in the reserves and service in Congress to its Judiciary Committee. The Committee, however, never reported. The executive branch, for its part, seems to regard the two positions as incompatible; an order of the Defense Department in 1965 apparently allowed congressmen to be part of the Standby Reserve, but not the Active Reserve.