The Personal Website of Mark W. Dawson

Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).

The Removal of Elected or Appointed Officials
who Violate their Oath of Office or are In Dereliction of Duty
to the Constitution

Introduction

In modern America, the Oaths of Office of Public Officials have become just a formality to start their term of office. Little thought and fidelity are given to their oaths once they begin their term of office. These Oaths of Office are a vow to uphold, preserve, protect, and defend the Constitution as their primary responsibility and secondarily to constrain their actions within the scope of their duties and responsibilities as defined by the Constitution. In the past, we have relied on the virtue and character of elected or appointed officials to keep their oath of office, along with the shame they engendered if they did not do so. However, virtue, character, and shame in modern politics seem to have been relegated to "the ash heap of history". Thus, little heed is given to their Oath of Office when they are executing the powers of their office. As such, they do not consider the Constitutional restraints on their powers, as they are more concerned about their political goals and policy agendas and the resulting political popularity gains and/or their reelection prospects to their current elected office or future elective or appointive office. Thus, when they engage in actions contrary to or outside of their Constitutional duties and responsibilities, they are in dereliction of duty to the Constitution.

The question is, then, what can be done about reigning in these violations of their Oath of Office and their corresponding dereliction of duties? The most common answer is their removal from office by impeachment. However, impeachment is not often available, is rarely utilized, and even more rarely results in their removal from office. This is because the Constitution is quite explicit about impeachment in Article II, Section. 4. in that:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Thus, a violation of their Oath of Office or dereliction of duty is not considered sufficient grounds for impeachment, as rarely do the violations of their Oath of Office or dereliction of duty concern Treason, Bribery, or illegal activities.

Many legal and Constitutional scholars have narrowly construed this clause to mean Treason, Bribery, or illegal activities as the only grounds for impeachment. As I have written in my Article, Impeachable Offenses, there are good reasons to narrowly construe this clause, as Stanford law school professor Pamela Karlan has written about the impeachment clauses:

“The Framers meant for the phrase ‘high crimes and misdemeanors’ to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue. If the phrase is given a less rigorous interpretation, it could allow Congress to influence and control the President and the courts.”

However, in an article by Andrew C. McCarthy, “The Mayorkas Senate Impeachment Trial That Wasn’t”, he states, “The contention that the two articles the House alleged against Homeland Security Secretary Alejandro Mayorkas do not state impeachable offenses is wrong.” as he states that:

“The fact that his conduct is probably not criminally prosecutable is beside the point. Impeachment does not require a penal crime. As Hamilton memorably observed in Federalist No. 65, it is a political offense sounding in abuse of the power entrusted to a public official, not in common crime.”

The major problem with impeachment is its indiscriminate use when it only deals with policy disputes. A policy dispute is a disagreement on the best means to implement a law or regulation, while a violation of an Oath of Office is exceeding the powers of the office, a failure to faithfully execute the laws, or an attempt to circumvent or evade the laws by establishing guidelines or regulations that make a mockery of the laws. Consequently, such actions are a dereliction of duty by the officeholder that should be impeachable offenses.

Another problem with impeachment is that elected officials are loath to remove other elected or appointed officials who have implemented policy decisions that obtain political agendas and policy goals for which they agree. The other problem with impeachment is how the Federal government could remove State and Local government officials who violate the Constitution.

Consequently, removal from office for a violation of an Oath of Office or dereliction of duty is fraught with difficulties and dangers to our republican form of governance. It also has an impact on democracy, as a democratically elected person should not be removed from office except in extreme cases. Given the above, the following are my thoughts on removal from office for violation of an Oath of Office or dereliction of duty.

Removal of Federal Officials

When you are an elected or appointed official of the Federal Government, your primary responsibility is to uphold the Constitution. Protestations that these concerns are above your pay grade or that they are the concern of the judicial branch are not defensible. Claims that you were only following orders does not cut it, as just following orders has been responsible for many evils in history.

Therefore, an elected or appointed official has a proactive duty to uphold the Constitution and must take no actions that they should reasonably know to be unconstitutional. If they plead ignorance as to their unconstitutional actions, then they are unfit to be elected or appointed officials. Consequently, those elected or appointed officials who violate their Oath of Office are assaulting the Constitution, and such assaults should be met with removal from office. These, therefore, are my thoughts on the removal from office in the various branches of government for failure of an elected or appointed official to uphold an Oath of Office.

Removal of Congresspersons and Officers of Congress

We have a problem in modern America in that many Legislative elected or appointed officials attempt to circumvent the Constitution and Supreme Court decisions on constitutionality when they disapprove of the Constitutional constraints or Supreme Court rulings. However, such actions are a violation of their Oath of Office:

“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.”
- Senate and House Oath of Office

Specifically, a violation of their oath to bear true faith and allegiance to the Constitution. Faith and allegiance require an understanding of our "American Ideals and Ideas" and the integrity to limit your actions to within the constraints of the Constitution. Unfortunately, most politicians are more interested in their political agendas and policy goals, along with their reelection, than in operating within the bounds of the Constitution. Most legislative officials are only interested in exercising their power to accomplish their duties and responsibilities and give little thought to operating within the bounds of the Constitution. Thus, we have many members of the Legislative Branch who do not support or defend the Constitution of the United States.

Removing a member of Congress should not be done lightly, as it strikes at the heart of democracy in that you are overriding the electorate's choice of their Representative or Senator. However, the Constitution in Article I, Section 5, Paragraph 2 gives Congress authority over its members in that:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

In the past, both houses of the United States Congress have refused to seat new members based on Article I, Section 5 of the United States Constitution, which states that:

“Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.”

Therefore, not seating or removing a member of Congress is Constitutional and has been done in the past. The difficulty in not seating or removing a Congressperson is that it has impacts on the balance of powers within the political parties in Congress, especially in a nearly even party distribution of seats in the House or Senate. Not seating or removal can thus have political consequences within Congress. Additionally, this political consequence may weigh more importantly in a vote to not seat or remove a member of Congress rather than the conduct of the Congressperson that brought about the vote. In addition, it may have electoral consequences in future elections, as supporters of the not-seated or removed Congressperson may not support the party nominee in the next election(s).

The House and Senate have officers who are appointed or elected officers who assist in the functioning of the different chambers of Congress. Officers and Organizations of the House are elected at the beginning of each Congress. House Officers include the Chaplain, the Chief Administrative Officer, the Clerk of the House, and the Sergeant at Arms. Appointed officials include a General Counsel, Historian, Inspector General, and Parliamentarian. Officers and Staff of the Senate include the President Pro Tempore, Secretary of the Senate, Sergeant at Arms, Party Secretaries, Senate Chaplain, Committee & Office Staff, and Pages. Their duties and responsibilities are prescribed both by law and rules by each chamber of Congress.

Thus, the ability to not seat or remove a Congressperson or Officer is not of the power to do so, but the willpower to do so. A willpower that is often driven by political considerations rather than concerns for fidelity to the Constitution and to support and defend the Constitution of the United States. Ergo, it requires virtue, character, and integrity of the House and Senate members to remove a Congressperson or Officer based on the violation of their Oath of Office. Alas, in modern America, virtue, character, and integrity seem to have been relegated to "the ash heap of history".

Removal of the President, Vice President, and Executive Officers

The removal of the President, Vice President, and Executive Officers is clearly defined in the Constitution as to the reasons and methods of removal by impeachment and conviction by Congress. The Constitution, in Article II, Section. 4. states:

The House of Representatives has the sole Power of Impeachment, while the Senate has the sole Power to try all Impeachments, and the procedures to do so are also established in the Constitution. As I have previously mentioned, the reasons for impeachment are narrowly defined to mean Treason, Bribery, or illegal activities. Thus, a violation of their Oath of Office is not considered sufficient grounds for impeachment, as rarely do the violations of their Oath of Office concern Treason, Bribery, or illegal activities. The question of the removal from office due to a violation of an Oath of Office is not specified in the Constitution, and the answer is, thereby, constitutionality nebulous.

A violation of an Oath of Office in the Executive Branch of government can be construed to mean exceeding the powers, duties, and responsibilities of the office, as well as a failure to faithfully execute the laws or an attempt to circumvent or evade the laws by establishing guidelines or regulations that make a mockery of the laws. In the past, we have relied on the virtue, character, and integrity of the President, Vice President, and Executive Officers to uphold their Oath of Office. Alas, in modern America, virtue, character, and integrity seem to have been relegated to "the ash heap of history". Thus, we have seen an increase in the violations of the Oath of Office, as there seems to be no consequences for violating an Oath of Office.

Executive Officers are nominated by the President, confirmed by the Senate, and serve at the pleasure of the President. This statement has been true throughout our history; the question I have is whether it should remain true. I firmly believe that the President should nominate an Executive Officer and the Senate should confirm the nominations, but I am less convinced that they should serve only at the pleasure of the President. In the past, the only way to remove an Executive Officer was by impeachment, which was usually done for criminal actions by an Executive Officer, as there are no other Constitutional means for removing Executive Officers other than for criminal actions. Therefore, their remaining in office for a violation of their Oath of Office has been left to the discretion of the President. Often, the President has approved of their violation of their Oath of Office, as it is often done to advance the political agenda and policy goals of the President. Consequently, Presidents rarely remove an Executive Officer for violations of their Oath of Office unless there is a political uproar because of their actions.

The Oath of Office for Executive Officers requires them to discharge the duties of the office for which they enter and to bear true faith and allegiance to the Constitution. Faith and allegiance require an understanding of our "American Ideals and Ideas" and the integrity to limit your actions to within the constraints of the Constitution. This Executive Officers Oath of Office is:

“I, [NAME], 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.”

In recent decades, and most especially in the Obama and Biden Administrations, Executive Officers have systematically ignored, circumvented, or contravened the law, which is an assault on the Constitution and The Rule of Law. They have systemically weaponized the government to persecute and prosecute their opponents. They have attempted and sometimes succeeded in extending the law via Executive Orders and Directives for the purpose of creating social policy that was not intended by the passage of these laws. All these actions are a violation of their Oath of Office and are Unconstitutional actions.

Additionally, many executive officers of the Biden Administration have withheld information, misinformed Congress, or deceived Congress when Congress has exercised its constitutional duties and responsibilities of Congressional oversight of the executive branch of government. Such deeds are a violation of the law that is punishable under the law, but it would require that the Biden Justice Department investigate, charge, and prosecute such deeds by Biden Executive Officers. This investigation, charging, and prosecution cannot be expected to happen, as the Biden Administration is the beneficiary of these illegal deeds and has no desire to end this practice of Executive Officers.

In addition, the incompetence of the Executive Officers in the Biden Administration is astounding. Through their words and deeds, they have continually demonstrated their incompetence. Almost every major decision that they have made has had negative repercussions for America and Americans. On the International stage, the withdrawal from Afghanistan, the Ukrainian War, the Hamas terrorism in Israel, and the threatening actions of Russia, China, Iran, and North Korea, along with their policies on Central and South America, have all been incompetent and dangerous to America and the world. On the National stage, the impacts of the Coronavirus Pandemic on Americans and our economy, their economic recovery plans, illegal immigration on our southern border, the increase in crime in our streets, the loss of energy independence, to the supply chain and transportation problems, to gas and food price increases, to inflation, to the weaponization of government, and to a host of other issues we have seen negative repercussions on America and Americans by the incompetence of the Executive Officers of the Biden Administration.

Given the sheer number of Executive Officers that President Biden has nominated and confirmed that are hopelessly incompetent, exceeded their powers, duties, and responsibilities, have not faithfully executed the laws, and have given false testimony, along with the unwillingness of President Biden to remove them from office, we need a better way than current impeachment to remove these Executive Officers from office. Their incompetence and deeds have done great harm to America and are a violation of their Oath of Office. Consequently, we need a way to remove them from office and replace them with competent persons who have the capabilities, honesty, character, integrity, and virtue to be Executive Officers.

In the past, we have relied on virtuous executive officers who would conduct themselves properly in the performance of their duties, and when they did not do so, they resigned in disgrace. Alas, virtue seems to have been replaced with political expediency in modern America. Therefore, I would like to see a Constitutional Amendment that would allow the House of Representatives, by a majority vote, to impeach an Executive Officer who has violated their Oath of Office. This would be followed by a Senate tribunal according to the rules of the Senate, in which a super majority 3/5 vote of the Senate would be required to remove an Executive Officer for violating their Oath of Office. The current 2/3 majority vote in the Senate for the removal of the President or Vice-President should remain, as these are elected offices for which removal has serious consequences for democracy.

Such a Constitutional Amendment would cause some consternation in our governance, as a partisan Congress may become more partisan, and a Congress of the opposite party from the President may utilize this Amendment to harass the President. However, I believe that the damage done by Executive Officers violating their Oath of Office is greater than the problems that may be caused by this Amendment. On balance, therefore, I believe that we need this Constitutional Amendment to reign in the problems created by Executive Officers who do not stay within the bounds of their Oath of Office. I also view this Amendment as a helpful check and balance against the powers of the Executive Branch.

Removal of Justices and Judges

In my Article, "Judges, Not Lords", I address the problem of Justices and Judges who rule beyond the boundaries of the Constitution or the Law. It is an unfortunate fact that in today's judicial system, judges often go beyond the scope of their duties and responsibilities. When a judge issues a ruling utilizing convoluted reasoning or stretching the law in which it was never intended, they are corrupting the Constitutional and democratic process. A judge is responsible for making sure that the law is equally applied to all who come before them. Their holdings, rulings, and decisions should be based primarily on the law as it is written or the intentions of the lawgivers as expressed during the legislative process. Laws are created to ensure a civil society. If a law, or judicial rulings and decisions, is convoluted or distorted, it cannot be followed by the members of society, and society will become less civil.

Under the Constitution, a Supreme Court Justice must take the following Oath of Office:

In addition to this oath, under Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.''

It is also true that all other Judges in the Judicial Branch must also take these two Oaths of Office before becoming a Judge.

Article III of the Constitution defines the purposes and scope of the Judicial branch, with Section 1 defining the structure of the Judicial Branch of the government:

“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

This means that Federal judgeships, except the Supreme Court, are created by legislation enacted by Congress. It also means that judges have a lifetime appointment, except under very limited circumstances, and that judges can only be removed from office through impeachment by the House of Representatives and conviction by the Senate. The impeachment process does not allow for the removal of a Justice or Judge who rules beyond the boundaries of the Constitution or the Law, as good behavior has been defined as not committing acts of Treason, Bribery, or illegal activities.

Therefore, I would like to see Congress pass a law that would allow for the removal of a Justice or Judge who rules beyond the boundaries of the Constitution or the Law and thus violates their Oath of Office to support and defend the Constitution and bear true faith and allegiance to the same. The removal of a judge is fraught with potential Constitutional, legal, political, and partisan ramifications. It should, therefore, be very difficult to remove a judge. But a judge who rules beyond the Constitution or the law also engenders legal, political, and partisan ramifications. On balance, I believe that we need this law to reign in the problems of Justices or Judges who rule beyond the boundaries of the Constitution or the law. This change can also be viewed as a check and balance against the powers of the Judicial Branch. This law should be structured as follows:

No Supreme Court Justice, Appellate Court Judge, or District Court Judge may be removed from their office while serving during Good Behavior or within Constitutional Jurisprudence. Good Behavior shall be defined as not committing any Treason, Bribery, or any High Crimes or Misdemeanors, while Constitutional Jurisprudence shall be defined as not exceeding the bounds of the Constitution or the laws as passed by Congress nor issuing any court rulings that fall outside the scope of their vested Judicial duties and responsibilities. Such removal shall be on a recommendation for the removal of a Justice or Judge by a three-fifths vote of no confidence by the House of Representatives of Congress, then submitted to the United States Senate for a tribunal according to the rules of the Senate. Such removal by the Senate shall be by a two-thirds vote for a Supreme Court Justice, a three-fifths vote for an Appellate Court Judge, and a majority vote for a District Court Judge by the full Senate for the removal of said Justice or Judge.

This removal process, along with Term Limits for Justices and Judges and the restructuring of the Federal court system that I have proposed in my aforementioned Article "Judges, Not Lords", would go a long way in reigning in Justices or Judges who rule beyond the boundaries of the Constitution or the Law. It would also temper their rulings to ensure that they are Judges and not Lords. It may take a Constitutional Amendment to achieve this goal, to which I respond, so be it, as the current functioning of the courts needs drastic improvements to ensure that Justices and Justices do not issue rulings beyond the boundaries of the Constitution or the Law.

Removal of Governmental Independent Agencies Officers

The utilization of Independent agencies of the United States government has proliferated in the 20th and 21st centuries in America. I am personally uncomfortable with the idea of a Governmental Independent Agency, as the Constitution specifies that Congress creates the laws, the Presidency executes the laws, and the Judiciary adjudicates the laws, and there is no mention of a Governmental Independent Agency in the Constitution.

In the United States government, independent agencies are agencies that exist outside the federal Executive Departments (those headed by a Cabinet secretary) and the Executive Office of the President. In a narrower sense, the term refers only to those independent agencies that, while considered part of the executive branch, have regulatory or rulemaking authority and are insulated from presidential control, usually because the president's power to dismiss the agency's officers is limited.

Established through separate statutes passed by Congress, each respective statutory grant of authority defines the goals the agency must work towards, as well as what substantive areas, if any, over which it may have the power of rulemaking. These agency rules (or regulations), when in force, have the power of federal law. Many of these independent agencies have officials that are appointed by the President or Congress without Senate confirmation, and, as far as I can determine, there is also no Oath of Office that the officials of these agencies must take upon assuming office. Often, they are appointed for a term of office in which it is difficult, if not impossible, to remove them until their term of office expires. This term of office was instituted to insulate them from partisan influences, but they often make partisan decisions while in office, especially when a new President is from the opposite party from the President that appointed them.

In creating these independent agencies, Congress has created an Administrative State that is undemocratic and unresponsive to the will of the people as expressed by democratic elections of Congresspersons or the Presidency. Consequently, these independent agencies are anti-democratic, and they are immune from Congressional or Executive branch Constitutional powers. It has also been very difficult for individual Americans to institute lawsuits to challenge their actions or decisions, which deprives Americans of the due process of law to protect their Constitutional rights.

Thus, these officials are independent of Constitutional constraints, and they can operate on a capricious and arbitrary basis. This must end, and any officer of an independent agency must be approved by the Senate and take an Oath of Office before serving. There must also be a mechanism for removing them from office when they violate their Oath of Office or when they are operating contrary to the wishes of the President, who has the Constitutional authority to direct agencies of the government.

As I believe that independent agencies are Unconstitutional and are being done wrongly, perhaps the better solution would be to fold these independent agencies into the Executive Departments or the Executive Office of the President, which would then make them Constitutional and subject to Constitutional constraints. In any attempt to do this, we should remember my allocution:

“It is not possible to do the wrong thing rightly, as no wrong thing can be done rightly.”
- Mark Dawson

Federal Removal of State and Local Officials

The Supremacy Clause of the Constitution in Article. VI. Paragraph 2 of the Constitution states that:

“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.”

Yet many state and local government politicians and officers now routinely pass laws and regulations that conflict with federal laws and regulations. Often, these State and Local governmental laws and regulations get appealed to the Federal courts, clogging up the courts and taking a considerable amount of time and money to resolve, during which many of these laws and regulations remain in effect. These State and Local officials often utilize legal reasoning that is "Torturous and Convoluted Reasoning" to justify their actions and make appeals to the public of "Adjective Justice", "Diversity, Equity, and Inclusion (DEI)", "Equity and Equality", "Greater Good versus the Common Good", and a host of other reasons that have no basis in the Constitution. Often, these appeals to the public are based on “fairness”, but to paraphrase Thomas Sowell, "The most basic question is not what is fair, but who shall decide what is fair?"

Thus, the question is, what can we do to reign in the State and Local laws and regulations that conflict with the Constitution? Perhaps if these state and local officials were obligated to pay all court and litigant costs if they are found to be unconstitutional actions, it might dampen these unconstitutional actions. In extreme cases, where their legal reasoning is without any merit, the Federal court should have the power to remove from office those politicians and officers who passed and promulgated these laws and regulations under the justification that they have violated their Oath of Office. Such payment of costs would require extensive changes to Federal law to achieve, and the removal from office may require a Constitutional amendment to accomplish. These are steps that should not be taken lightly, as they could play havoc with the finances of state and local governments and undermine democratic elections.

However, the difficulty of passing a Constitutional Amendment should be no barrier to attempting to do so if it is deemed necessary to preserve and protect the Constitution. It should only be a precaution to wisely do so and to carefully word the Amendment to achieve its goal without doing damage to the integrity of the Constitution.

Conclusion

Alas, I do not expect any of this to happen. The difficulties of crafting legislation for removal based upon a violation of an Oath of Office or dereliction of duty may be nearly impossible to codify into law, and it may take a Constitutional Amendment for the federal government to have this power. I also do not expect that politicians will use this power responsibly and with discretion, nor vote for the removal of another politician or officer with whom they agree with their political agendas and policy goals. I also do not expect the American electorate to give much consideration (if any) to this issue when they vote for a politician, thus allowing for the continuation of politicians and officers to operate outside of their Oath of Office or engage in a dereliction of duty.

But this is an important issue to discuss and resolve, for if we continue to allow politicians or officers to violate their Oath of Office or engage in a dereliction of duty, then we no longer have a balance of powers between the branches of government or limited and enumerated powers within a branch of government. To not bring politicians or officers within the constraints of the Constitution is to allow for capricious and arbitrary government, which is an assault on our "American Ideals and Ideas".

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