The Congressional Oath
In January of every odd-numbered year, when a new Congress is formed, all members of the House of Representatives and a third of Senate assemble in their respective chambers to take the Congressional Oath: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."
What does it mean to "support and defend" the Constitution? What is
bearing "true faith and allegiance" to the Constitution? How do those in
Congress "well and faithfully discharge the duties" of their offices? A
few years ago, Arkansas Congressman Vic Snyder, a family doctor as well
as a graduate of the University of Arkansas at Little Rock School of
Law, did what no one else has bothered to do, and took a hard look at
these questions. He did so in an article for his former law school's law
journal in 2001. (Snyder, first elected to Congress in 1996, is
retiring this year and is currently serving the remainder of his term.
Unfortunately, his article, at 24 U. Ark. Little Rock L. Rev. 811, is
behind pay-walls.)
Allow me to distill into a few sentences my understanding of what the
Congressman said in several thousands of words, in his wide-ranging
survey of the scant existing literature addressing the Congressional
Oath. He explored its history; he developed its meaning by examining a
few relevant Supreme Court holdings that shed light on it; and he looked
at its application in the context of amending the Constitution.
Although Congressman Snyder was not looking at the Congressional Oath in
the context of those participating in forcing -- or threatening -- a
government shutdown, I think what he found is relevant.
As I read Congressman Snyder's findings -- along with the comments of several of his congressional colleagues as well as then-Speaker of the House Denny Hastert, who joined him in accompanying essays -- the Congressional Oath is a pledge of conscience that requires a commitment to "abide by our constitutional system," and to operate "by constitutional processes." Most importantly, there is nothing casual about this pledge. Congressman Snyder approvingly cites Justice Story, who found that, because of their oath, federal officeholders have a "sacred obligation" toward the Constitution. In addition, Congressman Snyder believes that the oath embraces George Washington's admonition that the Constitution must "be sacredly maintained" by office holders, and James Madison's call for "veneration" of the Constitution. In short, the Congressional Oath demands a special "seriousness" in honoring its ways and means; it requires not merely following its terms, but also the spirit it represents.
The Congressional Oath And Government Shutdowns
Threatening, or forcing, a government shutdown is a conspicuous breach of the Congressional Oath. Our Constitution contemplates continuous government, undertaken pursuant to the structure set forth within that document, unless amended by the terms of that document, as spelled out in its Article V.
While the Constitution gives Congress the power of the purse, this appropriations process is divided between the Congress and the president, for no appropriation becomes law without the president's approval, unless his veto is overridden by two-thirds of the Congress. Notwithstanding this Constitutional reality, Speaker Gingrich has called the fact that the Congress must appropriate the funds for government to operate Congress's "trump" of the president's powers. As Newt discovered, this was wishful thinking. Remarkably, Gingrich is one of those who are enthusiastically pushing the Tea Party and current GOP leadership to again use the shutdown ploy to get what they want.
These threats to shut down the government, and the decisions to actually do so when necessary to make the point, are based on the belief that if a Republican Congress (House or Senate, alone when not together) can take the heat of public outrage, then Republicans can embarrass the Democratic president, who can't take the heat -- especially when a president is seeking reelection. Why can't the president take the heat, in Republicans' view? Because -- as many Republicans have told me -- the public is too stupid to figure out who is to blame for the mess, so they will blame the president. Accordingly, Republicans can use the shutdown threat to get what they want, forcing a president to promise not to veto it. Newt, for example, wanted to abolish a good hunk of the Executive Branch, and lower taxes, along with the other Republican wish-list items set forth in the Contract With America that he spearheaded.
The tactic of threatening the shutdown of, or actually shutting down, the federal government by withholding funding will not be found anywhere in the U.S. Constitution. In fact, it is a brazen abuse of power. This is a kind of gaming of the appropriations process, or taking advantage of a president when confronted with a debt limit, in a manner that is far beyond even Richard Nixon's abuse-of-power activities, for which he was forced from office.
Disrupting government operations is not merely a blatant violation of the Congressional Oath, which requires honoring our system and using the processes of government as they were intended. It also pushes the give-and-take of politics, in some circumstances, into the area of criminal extortion.
A Strong Reason For Concern: It's Possible the Tea Party May Successfully Bully the President
The reason I raise this subject at this time is that I am worried that when the thug-talking Tea Party players get going in Washington this coming January, they may successfully bully their way with President Obama. President Obama is a wonderful human being -- smart, caring, a man who wants to do what is best for America. But he has not yet figured out that a president is not simply a super-Senator, a legislator-in-chief, a consensus-seeker extraordinaire, always willing to compromise to keep everyone happy. Being president of the United States is not the same as being president of the Harvard Law Review, which was his prior executive experience. Mr. Obama learned his politics as a legislator, and while he clearly has the talent to do so, he has yet to employ his skills as they are needed by a modern American president.
Republicans, using the Tea Party toughs, no doubt feel emboldened. In the last election, they kicked President Obama's behind for doing what he believed to be best for the nation. I do not know when, or if, Mr. Obama will realize his potential as a president. So I worry. For example, as I write this column, he is floating a trial balloon as to what the reaction would be if he collapsed on the issue of prohibiting further ongoing tax cuts for America's super-wealthy, who are the very last to need tax cuts. Such a collapse would please Republicans and really upset Obama's base. Soon, the President will be negotiating with the government shutdown crowd, and I worry he will give up even more of the greater good to appease Republicans. In fact, he should be planning now (and putting Tea Party members on notice of his plans) as to how, at a minimum, he will embarrass them (no easy task) for threatening to shut down our government. Or, better yet, he should place them on notice that he will request his Attorney General to criminal prosecute them if they use such criminal tactics for political ends. (Congressional immunity is very limited.)
The bottom line: It is time now to plan for the bad behavior that will be coming to Washington with the Tea Party Movement, and to recognize the high stakes that will be involved when they threaten to shut down the government.(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
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