Dallas County, Texas Sherriff Lupe Valdez’s decision to not cooperate with all aspects of federal immigration law has been met with opposition from many conservatives. On the other hand, Rowan County, Kentucky Clerk Kim Davis has been derided by liberals for doing essentially the same thing with the U.S. Supreme Court’s decision on marriage.
Both of these incidents raise important questions about the obligations of these “lesser magistrates” to uphold the laws of their states and the United States, especially in light of the fact that the federal judiciary has appointed itself as the final arbiter of constitutionality in this country.
Upon taking office, Texas officials take an oath of office in which they swear to “preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.” Kentucky officials take a similar oath.
At first glance, it appears that a state official who refuses to comply with an order from the United States government might be in violation of her oath of office. Federal District Court Judge David Bunning certainly took that position with Ms. Davis.
“The court cannot condone the willful disobedience of its lawfully issued order,” Judge Bunning noted as he ordered Ms. Davis to be jailed. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
Following Judge Bunning’s reasoning, the question becomes, what makes an order, law, or regulation lawful so that the official must comply with it?
The federal oath of office sheds light on this question. Like state officials, Supreme Court justices and all federal employees, except the president, take an oath of office in which they “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.” Similarly, the President swears “to the best of my ability, preserve, protect, and defend the Constitution of the United States.”
It seems clear that the primary way of determining if an order, law, regulation, or other action by the government is lawfully issued is if it is in compliance with the United States Constitution.
At this point we have to ask, have all government actions been in compliance with the Constitution and thus lawfully issued? Is it possible that not all aspects of federal immigration law or the Supreme Court’s decision on marriage are in compliance with the Constitution?
Clearly, numerous actions by the government have been correctly declared out of compliance with the Constitution by the courts. So there have been unlawful actions by the executive and legislative branches, including President Barak Obama’s recent non-enforcement policies on illegal immigration. But what about the courts? How do we determine whether their orders and decisions are lawfully compliant with the Constitution?
The default position on this in American today is that the courts get the final word on constitutionality. Essentially, we treat the courts as infallible. President George W. Bush deferred to this view when he signed the McCain-Feingold campaign reform act into law despite his “reservations about the constitutionality” of certain aspects of the law.
But where does this leave individual officeholders in federal, state, and local governments who have sworn to “support and defend the Constitution of the United States?” Should not they uphold their oaths of office by making their own constitutional determinations, especially when other executive, legislative, or judicial officials fail to “bear true faith and allegiance” to the Constitution?
After all, this is essentially what the founders of our country did as officials when Parliament violated English law by imposing taxes on the colonies and King George failed to uphold his duties to protect the colonies from Parliament.
This is also in the spirit of the balance of powers as conceived in the Constitution. Federalism is based on “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, [being] reserved to the States respectively, or to the people.” We have seen what has happened to federalism—and liberty—as state officials, individually and collectively, have failed to adequately respond as Congress and the federal courts have rode roughshod over the Tenth Amendment.
President Abraham Lincoln supported this general approach in his comments on the Dread Scott decision: “When, as it is true, we find [a decision] wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.”
Preserving, protecting, and defending the U.S. Constitution is the sworn duty of every elected and appointed official in the United States. As citizens of the greatest experiment in freedom and democracy in the history of mankind, we should expect—and demand—no less of them.