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[COURT] Statement on the Incompatibility Clauses

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Nicholas_Battisti is online. Nicholas_Battisti
Joined: 25 Mar 2013
Total Posts: 408
01 Jan 2017 03:12 AM
Since, this has become such a debated question I would like to suppress it with logic and law.

Recently, Acting Governor Romero has appointed new Congressmen who have been asking if they can serve in the National Guard while serving on the legislature. As appreciative as it is, them wanting to farther serve -- the answer is that I would not advise it.

Why? Well, the Incompatibility Clause of the US Constitution states, "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 (Article 1, Section 6, Clause 2)."

Now, you might be asking how exactly is the National Guard a "civil office?" Well, a civil office is defined in this specific situation, to be an office appointed by the federal government. Therefore, since the member is serving under the legislative branch they cannot hold a job within the federal executive branch under this clause. It just so happens to be, that a national guardsman although, commanded by the state in peace are paid and up kept by the federal government.

Granted, this is not in the New York Constitution, but the US Constitution, tread at your own risk. The Appeals Circuit has yet to render a full opinion on a case involving this given the Supremacy Clause (Article 6, Section 2) of the U.S. Constitution and no prior court filings dealing with this issue.

TL:DR - If you join the National Guard while on the legislature, you do it at your own risk. Meaning, if the court interprets the law in favor of the Incompatibility Clause, you will be impeached from the assembly. As of right now, it is legal.

Thank you,

Hon. Nicholas_Battisti
Senior Judge, NY Court of Appeals
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