Aw Heck!

LAS VEGAS REVIEW-JOURNAL reports:

Rep. Joe Heck unquestionably has done a lot to serve his country.

Before winning election to the Nevada state Senate in 2004, or to Congress in 2010, or being commissioned in the U.S. Army Reserve in 1991, he graduated from osteopathic medical school. In 2007, he deployed to Iraq as commander of a medical company.

But recently, the question has been raised in the Review-Journal about whether Heck's dual roles as congressman (and perhaps U.S. senator, an office he will seek next year) and as a reserve Army brigadier general could pose a problem.

The U.S. Constitution says (in Article I, Section 6) "no person holding any office under the United States, shall be a member of either House during his continuance in office." That separation-of-powers clause ensures the people making the laws are never the same as the ones carrying them out. But members of the reserve are exempt. (Several have served in Congress.)

But there's another factor, one that could be serious and significant.

So, what is a young, E-4 corporal serving in the Reserve 3rd Medical Command in Atlanta — where Heck is deputy commanding general — to think? What are the sergeants and young officers to think, watching one of their top officers claim the president lacks fealty to the U.S. Constitution?

To say that might be deleterious to good order and discipline is something of an understatement. As a general officer, Heck occupies a position of respect among his troops, and his opinion is more than a trifling matter.

But as a congressman and a senator, Heck is obligated to stand up for his constituents and for the ideas upon which he built his campaign. To say he should hold his tongue in order to be faithful to his military job, even when he's not actually doing it, is tantamount to saying he can't hold both jobs at once.

The answer IMHO is simple--it's called a resignation for the good of the Service.  Each of us may be challenged at some time to consider a conflict of interest in our work.  I suppose as lawyers we are more frequently called upon to consider the actual or appearance of a conflict of interest.  When that happens we usually withdraw from the conflict.  Meanwhile, in the relevant worth the read column see David J. Shaw, An Officer and a Congressman: TheUnconstitutionality of Congressmen in the ArmedForces Reserve.  97 GEO. L. J. 1739 (2009).