People in the private sector do not take an oath of office when they get a job. They get an offer, report to work, and that’s it. For federal employees it is different. Reading so many articles about the inauguration that refer to the president-elect taking the oath of office on the 20th of January got me thinking about oaths and what they mean.
I have taken that oath of office as a civil service employee. Raising your right hand and swearing to “support and defend the Constitution of the United States” is not something most people take lightly. It is a solemn oath and it means something to most people who take it.
The president becomes a federal employee by taking an oath prescribed by Article 2, Section 1, of the US Constitution. It says “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Judges, members of the House and Senate, political appointees, the military, and other federal employees take oaths of office that are required by Article VI of the Constitution, which says “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The Constitution does not prescribe the actual text of the Article VI oaths. For federal civil service employees, the oath is set forth by law in 5 U.S. Code § 3331, which reads as follows:
“An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “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.””
The oath is relatively straightforward, but what does it mean? I see the oath as having 3 important aspects. First, the employee swears to support and defend the Constitution against enemies. Second, s/he swears allegiance to the Constitution. Finally, the employee promises to do his/her job well.
How does the oath manifest itself in day-to-day work? Does it provide any protection for an employee who refuses an order s/he believes would be a violation of the oath? That question is far more complex than the oath itself. Federal employees are required to follow lawful orders, even if they disagree with them. 5 USC 2302(b)(9)(D) gives employees the “right to refuse” with respect to unlawful orders. But what happens when an order violates a regulation or rule, but is not technically illegal? A 2015 Merit Systems Protection Board decision directly answered that question. MSPB outlined the issues in the case, writing “Specifically, the appellant asserted that the agency violated 5 U.S.C. § 2302(b)(9)(D), which protects employees from retaliation “for refusing to obey an order that would require the individual to violate a law.” 5 U.S.C. § 2302(b)(9)(D). He alleged that the agency improperly stripped him of particular job duties and gave him a subpar performance rating for disobeying an order that would have required that he violate (1) a Federal Acquisition Regulation that limits the authority of a contracting officer’s representative (COR), and (2) “PA296: How to be a COR,” the agency’s training course for COR certification, which further clarifies the limitations to this authority.” MSPB’s final decision said “…we hold that the right-to-disobey provision at section 2302(b)(9)(D) extends only to orders that would require the individual to take an action barred by statute. Because the appellant in this case contends that he disobeyed an order that would have required him to violate an agency rule or regulation, his claim falls outside of the scope of section 2302(b)(9)(D).”
The oath of office does not grant any protection for deciding that an order is a bad idea, bad policy, or morally or ethically wrong. In fact, the oath does not grant any protection from anything. It is an oath of allegiance and a promise to do good work. Employees who believe they are being ordered to act in a manner inconsistent with their oath of office may pursue other options, such as whistleblower complaints or any other avenue provided by law or regulation, but disobeying direct orders is generally not one of the available options. That means an employee who wants to argue that s/he is adhering to the oath of office by disobeying orders has a very tough hill to climb. There is also the option of going to the press, but that can bring its own set of risks.
The Constitution outlines the responsibilities of the President, the Congress, and the Judiciary. It describes the process for running presidential elections, and for the president to appoint people to federal office. The transition that happens on January 20th is part of that constitutional process. Whether an employee was a Trump supporter, a Clinton supporter, a supporter of another candidate, or someone who chose not to vote at all, is not relevant to the oath of allegiance to the Constitution.
Nor is it relevant to the promise to do a good job. Most federal employees are highly professional. They understand their oath of office and take it seriously. Even though many political appointees do not recognize the professionalism of federal workers on the day they take their own oath of office, as their experience with federal workers increases, they typically begin to recognize the vital role federal employees play.