Alito to Amtrak Employees: Take Oath to the Constitution

March 9th, 2015

If Amtrak wants to be treated like it is part of the federal government, its employees must take an oath to the federal government.

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] Repre- sentative . . . 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 Gov- ernment 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 Con- stitution, 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 Gov- ernment, ante, at 11, those who run it need to satisfy basic constitutional requirements

That means you, food car manager! So step out of the quiet car, and swear or affirm your allegiance to the Constitution.