My pre-emptive defence: I'm an insomniac - not chronically so, but recently I've not really been sleeping. It may well be that the brilliant minds of the DKos community will put me straight in 10 minutes flat, and I'll be tempted to delete this diary out of shame.
Fans of the West Wing will get the reference to the title of this diary, where Toby thinks he's found a typo in the constitution (a missing comman which would radically alter our understanding of the Takings Clause of the Fifth Amendment) - "is it a comma or a smudge?".
I don't think I've found a typo, but I've realised I have been assuming that the Constitution says something it doesn't for a long time. And so I turn to you...
There is a great diary today by lexifer asking whether Barack Obama should do a Taft, and become a Justice of the Supreme Court after his second term. I want to be a little bolder. I want to suggest he could become a Justice of the SCOTUS whilst still POTUS.
"But stop" says the little dissenting voice in my head, "isn't it prohibited to serve in more than one branch of the Federal government simultaneuously?". And I don't think it is.
I've got so used to the idea of the Separation of Powers doctrine that I assumed/misread that it was a Constitutional principle. It is in many states: Article II Section 1 of the Nebraska Constitution states that:
The powers of the government of this state are divided into three distinct departments, the Legislative, Executive and Judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.
However, when I tried to find a similar phrase in the US Constitution, I couldn't.
The closest you get is Article I, Section 6:
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.
By my reading, this prohibits serving in both the Legislative and Executive/Judicial branches, but does not prohibit serving in both the Executive and Judicial branches simultaneously.
And sure enough, there is historical precedent. Between 4th Feb and 4th March 1801, John Marshall was both Chief Justice of the United States, but also US Secretary of State.
I've been through the Constitution, the US Code (there's a lot of it), many of the Federalist Papers, and many of the early SCOTUS cases (such as Marbury v Madison). I'm quite tired, and I still can't find anything that would prohibit Barack Obama becoming a Supreme Court Justice whilst still serving in the Executive Branch.
I'm not saying it should happen, and I recognise that the principle of Separation of Powers as political dogma would prevent this happening, but I still find it curious that it is not (as far as a night's research can tell) technically prohibited for someone to serve in 2 branches simultaeously, as long as one of them isn't the Legislative Branch.
So over to you - I know we have many lawyers and scholars on here, so hopefully one of you can elucidate. I need some sleep.
UPDATE: It also solves the issue of the VPOTUS. It could b argued that he is a member of both the Legislative and Executive branches, but as he's not a Senator or US Rep ('member of either House) it's not a breach of the Constitution.