A significant legal theory of Texas v White dealt with this.
In the preamble of the Articles of Confederation state that it is a
yet in effect, nine states seceded form the United States of America to form the United States of America under the Constitution. Chief Justice Chase claimed that under the Constitution, “a more perfect Union” would be one that a state could not unilaterally seceed from like they could under the mere “perpetual Union” of the AoC.
Sovereignty is self-generating. You could just as equally argue that the Declaration of Indendence was not legally binding because only an act of the British Parliament had the authority to free any British colonies. But the colonies, be declaring their independence, were also declaring that they were no longer subject to Parliamentary authority.
Same thing with the Constitution. It was not legally enacted under the terms of the Articles of Confederation. But by enacting the Constitution, the United States also declared that it was no longer bound by the Articles of Confederation.
Would that be unconstitutional under Article One, Section Ten, Clause Three which says “No state shall (…)enter into any Agreement or Compact with another State,”? Or, given the military context of clause three, is that referring just to military alliances or treaties? How about Clause One which says “No State shall enter into any Treaty, Alliance, or Confederation”?
Ah, the term “sovereign”. Such a wonderfully compact way of saying “We have the power to tell you to go to the Devil”. 
Well, there are real-life organisations set up by interstate agreement, e.g., the Port Authority of New York and New Jersey. Would that offend Article 1, Section 10? Or did the Congress of the U.S. give permission for the Port Authority to be set up?
The short-lived TV series Commander in Chief had an episode plot that touched on number one. The Vice President had recently resigned, and the President had to have surgery for appendicitis. The administration sent paperwork to the Speaker to waive the temporary elevation to President, so that the President Pro Tem of the Senate could take over while the POTUS was under anesthesia.
They assumed he’d waive because to be President he’d have to resign from his seat in the House. (It wasn’t made clear why this didn’t apply or matter to the Pro Tem.) To their surprise, he did resign and took over the Oval Office for about a day, since he was going to resign soon anyhow to run for President.
However, when he resigned his seat and therefore lost his ability to vote in the House, he was still the Speaker.
I know TV shows aren’t usually legally accurate, but I found it interesting, having just watched the whole series on Hulu.
most of Obama’s Cabinet were either Senators or Governors.
But they all resigned those elected posts to serve on the cabinet.
Senators have to resign, though, but a governor could legally serve in the Cabinet even while staying on as Governor (assuming state law doesn’t prohibit it).
I’m basing that on a clause in Article 1, Section 6:
I’m not sure if this has ever gone to court, but history counts a position in the executive branch as an office under the United States, i.e. a federal office.
Governors are state offices. They are not held back by this provision, although they always do resign.
The Founders didn’t go through every possibility of every loophole and account for it. They expected certain behaviors. And most of the time those behaviors have indeed been held to.
Such as this provision of the Ohio constitution:
Just out of curiosity, what if anything is herein provided?
This was really a stinker of a clause…
According the the Articles of Confederation:
Article XIII. Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.
So, officially for the Constitution to be passed, it has to be passed by the Congress of the Articles of Confederation, then by the legislature of all 13 states. You cannot pull out of the Articles of Confederation and start using the Constitution.
However, the Confederation Congress never approved the Constitution, and the Constitution was never submitted to the legislatures of the various states. Instead, it was done by convention bypassing the state governments. And, only 9 of the 13 states had to approve it in order to take effect.
This was done on purpose. The backers of the Constitution knew that getting all states to agree would be almost impossible. However, if nine of the thirteen states agreed, what would the other four do – especially if the nine consist of the largest states?
And, by bypassing the state legislatures, the backers of the Constitution hoped for two things: 1). a stronger political connection to the individual Americans, and 2). the hope they’d have more influence over a convention than the legislature of the individual states.
The authors worried that the legislatures would simply vote down the Constitution because it would give the national government too much power. However, they felt it would be easy to create enough political pressure to call conventions, and that they would have enough influence in selecting the delegates and over the convention to push for approval.
It’s why our Bill of Rights are all amendments. During the conventions, many people worried over specific things the Constitution stated and the backers of the Constitution promised that they would support certain amendments in the form of a Bill of Rights if the Constitution was passed.
The politics behind the Constitutional Convention and the battle for its passage are very interesting. In fact, much of this was the work of a certain General George Washington who not only was the one who helped organize the Constitutional Convention, but was also the presiding officer of the Constitutional Convention.
There’s also the precedents of John Jay and John Marshall, who both served simultaneously* as Chief Justice and Secretary of State.
*To clear up any confusion, the two men did not serve at the same time. They each, during different periods, served simultaneously in both posts.
I just thought of a great idea for a sitcom.
Since judicial review is a wholly judge-made power to begin with, I suspect that the Court would have no trouble finding that Congress lacks the power to restrict it.
Technically judicial review wasn’t made up by John Marshall. The concept already existed. His original contribution was to assume that power for the Supreme Court, although in a fairly passive fashion. It was Roger Taney who really established the modern principle of judicial review.
But the issue isn’t whether or not the Court now has the power of judicial review (that train has left the station). The issue in the situation I described would be whether or not a 5-4 majority is a sufficient majority to overturn.