The Unaccountability of Politicians

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Just a few hours ago, the US Supreme Court announced they would decline to hear the Brunson vs. Adams case. For those who don't know, this case claimed that Congress, in failing to investigate claims of fraud in the 2020 election, committed an act of treason that had national security consequences equivalent to an act of war. The proposed remedy was to remove all members of Congress who voted to certify the election results without investigation, and to remove from office those officials who were installed as a result. Buried in the case, though, was a much deeper issue: should elected officials be held accountable for upholding their oath of office?

An Oath of Office

From the top of government on down, officeholders are required to take an oath, generally requiring them to uphold the laws of the land and to faithfully execute their duties. Even the President shall be required to take an oath as prescribed by our Constitution, Article II, Section 1 which states:

" Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Every member of Congress, every judge, members of the military, state governors and legislators and numerous others are required to take a similar oath prior to assuming office. The question becomes, should these people suffer penalty should they violate their oath? If they should, what form should that penalty take? During campaigns, politicians make all sorts of promises, most of which are never fulfilled. These promises, while they may persuade voters, are different from an oath of office. There may be many valid reasons why circumstances or other uncontrollable situations might make keeping a campaign promise difficult or impossible. An oath of office, though, is different. Looking as the oath required of the President, we see that the oath does not name specific actions or results, but rather requires the President to "preserve, protect, and defend the Constitution" In other words, the President may not take actions that would be contrary to the Constitution, which includes laws passed by Congress under the authority of Congress. Since the Constitution, according to Article IV is the Supreme Law of the Land, any laws passed by Congress and signed into law by the President shall inherit that quality. Indeed, Article IV states:

" This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

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Proportional Consequences

Article IV further states:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;"

What is missing is provision of a penalty should that oath be violated. In the good old days, when an authority became too uppity, they could be tarred, feathered, and run out of town on a rail. Unfortunately, that hallowed tradition is seldom applied today. Indeed, most authorities have sufficiently isolated and protected themselves from any oppositional acts of their constituents that an attempt to reinstate such action would be hazardous to all concerned. That situation, though, leaves little room for effective protest against arbitrary authority. The Brunson case was an attempt to provide such balancing of power by imposing a penalty on those found guilty of their failure by removing them from Congress and prohibiting them from ever again holding any public office. While that might seem a bit extreme to some, the argument was that their failure had an effect on the Nation equivalent to war, and that such consequences merely reflected the seriousness of their failure. In rejecting the case, the Court also rejected dealing with the question of an oath of office. There have been several attempts over the years to hold various politicians responsible for upholding the oath they swore to assume their office. There is a certain difficulty inherent in asking an official to hold themselves responsible for violating their oath. The usual response can be summarized as: "No I won't, and you can't make me!". The Court has left open the question of just how much value does an oath of office have? In a court of law, witnesses are required to affirm that they will tell the truth, and they can be found guilty of perjury and suffer criminal penalties should they violate that oath. Should there be any difference between such an affirmation in court, and an oath sworn to assume office?

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A failure to act

An oath of office is a solemnly sworn oath to perform certain duties or take specific actions, and forms a type of contract with the populace. For example, a Presidential oath requires the President to faithfully uphold the Constitution. The Constitution, in turn, requires the President to faithfully uphold the laws of the land. Our current president is failing to uphold a variety of immigration laws that would prevent the current flood of illegal immigration. Should the President be held to account for violation of his oath of office?

On the horns of a dilemma

The court had a few options. It could simply decline to hear the case, as it chose to do. In that event, things continue as they are where the oath of office is generally considered simply a pro forma step to assuming power, and can generally be ignored in the exercise of that power. Had the court decided to hear the case, it could decide that an oath of office is not enforceable, and that things can continue much as they are, but with official sanction for ignoring an oath. Such a decision would further remove restraints across all elected and appointed offices, and could even affect the oaths of service for the military, the police, and the entire justice system. Conversely, the Court could have decided that oaths of office were enforceable, and that officials could be held accountable for violation of their oaths. While such a decision would generate much consternation among officials, it would serve a great purpose of restoring the accountability of office that has been so greatly eroded. While a decision to hold officials accountable to their oaths could open the door to abuse and frivolous charges against officeholders, allowing officials to ignore their oaths has clear consequences for the Nation and even for the Court. Trust in our elected officials is at an all-time low, yet trust is essential to the proper functioning of government. We elect representatives, not rulers, and officials must, from time to time, be reminded of that. Without accountability, there is no effective restraint against arbitrary exercise of power, as there is little recourse available if law is ignored as “inconvenient”.

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Where do we go from here?

By leaving the question unresolved, the Court has created a situation where the status quo remains intact, and those who have sworn an oath are only accountable for actual criminal acts, but cannot be required to perform the duties of their offices, as their oaths obligate. This is not a good situation at a time when trust in our officials, and even in our system of government is at an historic low. Indeed, recent revelations have shown that too many of our institutions have sought to use their power against the citizenry in clear violation of their oaths. We can hope that a new case will be presented that more directly addresses the issues around an oath of office, and that the case will be heard quickly. Failure to step up to the existing concerns puts our Nation at risk. I realize that such a case raises many questions both serious and awkward, with few good alternatives for judgment. It is my hope that through wisdom, and concern for the well-being of our Republic and its people, the Court may come to a good decision.