Congressional Oath: Failure To Uphold Constitution

Members of Congress are required to take an oath of office to support the Constitution before assuming office. However, there have been instances where members of Congress have been accused of violating this oath and the Constitution itself, such as in the case of Walker v. Members of Congress. In this case, Congress refused to call an Article V Convention as required by law, which was seen as an attempt to alter the form of government and a criminal violation of federal law. While there is a process to impeach and remove a President for failing to uphold the Constitution, there is no clear mechanism to hold Congress as a whole accountable for similar violations. This raises questions about how to ensure Congress remains accountable to the Constitution when it has the power to set its own rules.

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There is no formal process to impeach Congress

The Constitution outlines the rules for how Congress can operate and what it may or may not do. However, there is no formal process to impeach Congress if it fails to uphold these rules. While the Constitution grants Congress powers to act, it does not oblige it to do so in any specific instance. For example, it is constitutionally valid for Congress to pass a bill, vote it down, or decline to bring it up for a vote.

The Constitution does provide a process for the impeachment of the President, Vice President, and all civil officers of the United States. This process involves a determination of misconduct, such as treason, bribery, or other high crimes and misdemeanors. However, the Senate has concluded that members of Congress are not considered "civil officers" for the purposes of impeachment.

The absence of a formal impeachment process for Congress means that there is no clear mechanism to hold individual members or the body as a whole accountable for failing to uphold the Constitution. This lack of accountability can be problematic, especially when Congress's inaction or failure to act has significant consequences.

It is worth noting that each house of Congress sets its own rules, as granted by the Constitution itself in Article I, Section 5, paragraph 2. However, the Supreme Court considers cases of Congress violating the Constitution through inaction as non-justiciable, as they involve political rather than legal questions. The Supreme Court does not have the power to force the legislative branch to take specific actions, even if it can answer legal questions regarding the interpretation and application of laws.

Congress can pass laws that exceed their authority

Congress has the power to pass bills, vote them down, or decline to bring them up for a vote. However, Congress can also pass laws that exceed their authority, as outlined in the Constitution. This is a violation of their oath of office, which requires them to support and defend the Constitution.

Congress has a wide range of powers, but there are certain things that are constitutionally mandated for Congress to act on with a yes or no, such as treaties and Supreme Court nominations. However, Congress often has more tasks than it has time to accomplish, so it must prioritise its work. This means that some legally valid steps may have political costs, such as failing to pass a budget, which can lead to unpopular government shutdowns.

In the case of Walker v Members of Congress, it was argued that Congress had refused to obey the law of the Constitution by not calling an Article V Convention when required to do so. This was seen as a criminal violation of 5 U.S.C. 7311 and 18 U.S.C. 1918, as it altered the form of government without amendment. By joining the lawsuit to oppose the call for an Article V Convention, members of Congress publicly declared their opposition to obeying the Constitution, violating their oath of office.

While there are consequences for the President if they do not fulfil their constitutional duties, there is no clear process to remove and replace Congress as a whole for failing to act on constitutional requirements. The Supreme Court cannot force Congress to take action, and each house of Congress sets its own rules, as granted by the Constitution itself.

Congress can unconstitutionally delegate power to the executive branch

The Constitution sets out the rules for how Congress can operate and what it may or may not do. While the Constitution grants Congress powers to do certain things, it does not oblige it to do any particular thing. Congress can pass a bill, vote it down, or decline to bring it up for a vote.

However, Congress can only delegate its powers in certain circumstances. The separation of powers between the legislative, executive, and judicial branches of the US government is one of the founding principles of the nation's government. Therefore, the different branches cannot usually delegate their powers to each other.

There have been some instances of Congress unconstitutionally delegating power to the executive branch. For example, in Panama Refining Co. v. Ryan, the President was given the power to prohibit the shipment of "hot oil" (oil produced in excess of state quotas) in interstate commerce. The statute did not specify a policy to guide the President in determining when and under what circumstances to exercise this power. In A. L. A. Schechter Poultry Corp. v. United States, the National Industrial Recovery Act devolved power to the executive branch to formulate codes of "fair competition" for the industry to promote "fair competition". The policy was "to eliminate unfair competitive practices", but the statute did not specify how this was to be achieved. In both cases, the Supreme Court found that Congress had unconstitutionally delegated its powers.

In other cases, Congress has delegated power to the executive branch without it being deemed unconstitutional. For example, in J. W. Hampton, Jr. & Co. v. United States, the Court upheld Congress's delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries. The Court ruled that congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an "intelligible principle" to guide the executive branch. Similarly, in Field v. Clark, the Court held that the tariff-setting authority delegated in the McKinley Act was not the making of law, but rather empowered the executive branch to serve as a "mere agent" of Congress.

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Congress can refuse to issue a call for an Article V Convention, violating their oath of office

The Constitution requires that all members of Congress take an oath of office to support and uphold the Constitution before assuming office. The oath is as follows: "I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States."

In the case of Walker v Members of Congress, members of Congress refused to issue a call for an Article V Convention, violating their oath of office. By refusing to obey the law of the Constitution, they not only violated federal income tax law but also their oath of office.

The word "peremptory" precludes any objection by members of Congress to refuse to call an Article V Convention. This includes joining a lawsuit to oppose obeying the law of the Constitution. By joining the lawsuit, members of Congress publicly declared their opposition to obeying the law, which is a criminal violation of their oath of office.

According to federal law, it is a criminal offense for anyone employed by the US government, including members of Congress, to "advocate the overthrow of our constitutional form of government." Violating this law can result in removal from office, confinement, or a fine.

While there are consequences for individual members of Congress who violate their oath of office, there is no clear process to address Congress as a whole violating the Constitution through inaction. The Supreme Court considers such cases non-justiciable, as they involve political questions rather than legal ones. Additionally, the Constitution grants Congress broad powers to act or not act on certain matters.

Congress can refuse to pass a budget, forcing a government shutdown

The Constitution outlines the rules for how Congress can operate and what actions it can and cannot take. However, it does not specify any consequences for Congress's failure to act. While the President can be impeached for failing to fulfil their constitutional duties, there is no process to impeach and remove Congress as a whole.

Congress can refuse to pass a budget, which will result in a government shutdown. This is because many federal government agencies and programs rely on annual funding appropriations passed by Congress. Each year, Congress must pass, and the President must sign, budget legislation consisting of 12 appropriations bills, one for each Appropriations subcommittee. If Congress fails to pass these bills by the funding deadline, a government shutdown occurs. During a shutdown, federal agencies must halt all non-essential functions until new funding legislation is passed.

Essential workers are expected to continue working without pay and will receive back pay once the shutdown ends. Furloughed employees are not allowed to work and are also guaranteed back pay. A government shutdown can impact millions of Americans, and they are generally unpopular with the public. Congress can avoid a shutdown by passing a continuing resolution (CR) to temporarily fund the government. However, this may require bipartisan support, which can be challenging to secure.

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