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Saturday, March 4, 2017

The Presidential Oath

By disregarding norms and customs, Trump is revealing how much our system relies on them.

Benjamin Wittes and Quinta Jurecic have an extremely important article at the Lawfare blog:
Indeed, a person who pauses to think about the matter has good reason to doubt the sincerity of Trump’s oath of office, or even his capacity to swear an oath sincerely at all. We submit that huge numbers of people—including important actors in our constitutional system—have not even paused to consider it; they are instinctively leery of Trump’s oath and are now behaving accordingly.

This reality, and we argue here that it is a reality, is already conditioning the Trump presidency in overt ways visible every day. What’s more, we submit that these doubts about the President’s oath will inevitably shape public and institutional reaction to his service. And as a predictive matter, we believe that doubts about the President’s oath will have important and negative implications for the future of the American presidency.
The vertical integration of the executive branch depends pervasively on the President’s oath. If a judge does not believe in the integrity of that oath, she may show less deference than she otherwise would—or than doctrine might insist is proper in the circumstances. But if a staffer in a federal agency doesn’t believe in the integrity of the president’s oath, that mistrust breaks key bonds that tie that staffer to the executive will. After all, the reason to follow orders in the executive branch is that the president is both elected by the people, and thus represents the popular will, and has sworn an oath to faithfully execute the laws. If you don’t believe that oath and you don’t believe that he is necessarily pursuing the public’s interest, why follow orders and carry out his policy? Such a staffer may feel no compunction about telling someone in the press about policy discussions he doesn’t believe are being undertaken in a sincere effort to “faithfully execute” the functions of the executive branch and to “preserve, protect and defend” the Constitution. He may actively believe that his own oath of office requires a certain degree of undermining of those policy processes, both with forms of internal pushback and resistance and with public exposure. Or, less nobly, he may simply feel freed from normal bonds of loyalty and hierarchical discipline and thus able to embarrass a hated boss or scuttle policy changes he doesn’t like.
The point is simply that when the bureaucracy doubts the president’s oath, that fact gravely frays the executive’s ordinary comparative unity. The people who work for the president no longer connect loyalty to the executive branch with the lofty goals to which the oath seeks to bind the president, so they become much more likely to act on their own.