Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.
Here is the relevant portion of Justice Alito’s concurring opinion in American Railroads, with a paragraph break added:
I begin with something that may seem mundane on its face but that has a significant relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 (“[A]ll executive and judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution”); Art. II, §3, cl. 6 (The President “shall Commission all the Officers of the United States”).
There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) (“[A] Representative . . . does not become a member of the House until he takes the oath of office”); 15 Op. Atty. Gen. 280, 281 (1877) (similar).* And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison, 1 Cranch 137, 156 (1803); see also id., at 179 (noting the importance of an oath).
Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.
Here, respondent tells the Court that “Amtrak’s board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority.” Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 11, those who run it need to satisfy basic constitutional requirements.
*It is noteworthy that the first statute enacted by Congress was “An Act to regulate the Time and Manner of administering certain Oaths.” Act of June 1, 1789, ch. 1, §1, 1 Stat. 23.
There’s a lot here. Let me focus on three points.
1. Identifying Officers. Justice Alito is using the “Oaths and Commission Clauses” to establish a criterion for service as an “officer of the United States.” In doing so, Alito seems to equate officers with people who “exercise significant authority of the United States.” That phrasing is no accident. As Buckley v. Valeo put it: “[A]ny appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of” Article II.
Justice Alito then goes further and posits that the Oath and Commission Clauses together provide a complete basis for identifying officers, at least if those Clauses are being followed. As Alito puts it, “There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.”
This statement seems a bit too quick. For one thing, there’s always “a question” about how to apply legal tests. For another thing, it seems possible for someone to have taken the oath and obtained a commission without exercising significant federal authority or (equivalently) being an officer. This possibility suggests that courts must be prepared to look beyond the often-helpful formalism of the oath and commission and to consider functional realities.
2. Installing Officers. Next, Justice Alito cites OLC memos in finding “good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States.” This kind of thinking explains why President Obama re-took his oath of office back in 2009. When the President and the Chief Justice garbled the constitutionally prescribed words, there was a credible threat of litigation. Only after taking the precise presidential oath set out in Article II (the argument would go) could the President-elect exert the power of the Presidency.
But it’s important to note an analytical leap here—and one that Justice Alito seems aware of, given his express caution in advancing this position. The general Article VI Oath Clause says that officers “shall be bound by Oath,” and the Commission Clause says that the President “shall Commission” all officers. But one or both of those duties can be read to presuppose that someone has already become an officer, even without the oath and/or the commission. On this view, an officer’s lack of oath or commission might transgress the Constitution without affecting an officer’s status or ability to exert federal authority.
3. Making Officers Accountable. Focusing just on the Oath Clause, I agree with what Justice Alito rightly calls an “important point”—namely, that “[t]hose who exercise the power of Government are set apart from ordinary citizens” and “are subject to special restraints.” Alito briefly grounds officers’ unusual restraints in the fact that, as compared with “ordinary citizens,” officers “exercise greater power.” That expression calls to mind Peter Parker’s timeless lesson that “with great power, comes great responsibility.” Surely that’s true, but it doesn’t fully capture the “special” duties incumbent on officers.
Officers don’t just have unusual power to do good or ill. They have also assumed a distinctive role marked by a personal commitment to law. A person with de facto power might think that a certain action is morally good regardless of the law and so might feel obliged to perform that action if given the chance. But an officer bound by oath has “special” reason to consider the law. That moral reason is rooted at least in part in the oath—a paradigmatic source of promissory obligation. Some might respond that “ordinary citizens,” too, have a general moral duty to adhere to the law; but even if that is so, the oath confirms that officers recognize their legal duty while also affording the duty added moral force.
That brings us to Justice Alito’s basic conclusion: Amtrak’s leadership must take the oath so as to further “the principle of accountability.” Alito could mean that the oath reflects formal obedience to constitutional text, or a convenient means of identifying officers for Appointment Clause purposes. But there is another, more compelling possibility: the point of the oath is to create or intensify officers’ sense of moral obligation to law. The relevant form of accountability, on this view, is internal to the officer. (I have a forthcoming paper on this topic and so would be especially grateful for readers’ thoughts.)
As Justice Alito notes, the oath “may seem mundane,” but it isn’t. And I suspect that most actual officers don’t view it as mundane either.
First posted on Prawfs.