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The Oath Accountability Civil Action

PatriotPost.US is preparing to launch a legal battle in support of our mission to reinstate the Rule of Law enshrined in our Constitution. This battle, unlike others before it, regards Breach of Oath — breach of contract with the American people — and the lack of any proscription against and penalty for such a breach.

Certainly the greatest obstacle to winning this battle is getting onto the legal battlefield in the first place. That means establishing "standing," or the right to be heard by a court — more on this concept, below. Meanwhile, an outline of the basic accountability argument follows.

Oaths of Office & Accountability — The Issue Behind the Case

The Presidential oath is specified in Article II, §1 of the Constitution:

"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."

Similar language echoes in statutory implementation of the constitutional requirement for congressional oaths of office under Article VI, Clause 3:

"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 key words here are "shall be bound by oath or affirmation." Bound how and by whom with what penalty for violation? The problem is that all of these officials are bound solely by their conscience, with no statutory mandate for living up to their oaths.

The only exception in federal law regulating oath of office by government officials pertains to treason. Two executive orders and four statutes define that narrow exception, the upshot of which is this: unless an official is found guilty of treason for advocating the overthrow of the United States government, he is free from any statutory obligation to abide by his oath.

Simply put, the class action soon to be brought by PatriotPost.US seeks to remedy this gaping loophole by binding U.S. officeholders to accountability to their solemn Oaths of Office.

Standing — The Primary Hurdle to Seeking Justice in the Courts

Article III, §2 of the Constitution limits federal courts to hearing only "cases" and "controversies." Through case law, the Court has interpreted this limit to mean that the courts may hear only those disputes which are traditionally thought to be resolvable through the judicial process — in the language of the courts, these cases are "justiciable." Simply put, the case itself can't be brought to court if: a) the court has no way of deciding the case; b) the court can't provide a remedy, even if the case is decided; c) the case isn't an actual right-here-right-now dispute between two parties with real interests involved (as opposed to a hypothetical dispute with no "skin in the game"); or d) the case involves an issue that is already delegated by the Constitution to another branch (i.e., a so-called "political question").

However, even if the case itself is justiciable, the person bringing that case must have "standing." The idea behind "standing" is that independent of whether a dispute exists that a court can remedy, the person raising the dispute must have the legal right to be in front of the court in the first place.

The plaintiff gains this right by meeting a three-pronged test: First, the plaintiff must have suffered an "injury in fact," i.e., "an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not 'conjectural' or 'hypothetical'"; second, a causal connection must exist between the injury and the conduct complained of, that is, "the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court"; and third, "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" (all quotes from Lujan v. Defenders of Wildlife, citations omitted)

If standing is an issue, then, the threshold question is whether the person whose standing is challenged has a right to stand before the court, not whether the issue itself is worthy of being tried. The party invoking the jurisdiction of the federal courts must have "a personal stake in the outcome of the controversy" and the dispute must touch upon "the legal relations of parties having adverse legal interests." A plaintiff cannot sue if his injury is simply widely shared in an undifferentiated way with the general public. Moreover, "[t]he party invoking federal jurisdiction bears the burden of establishing [standing]."

Without standing, a dispute will not see the light of day in court, but the goal behind the standing requirement is worthy and twofold: first, to ensure actual disputes are tried, not hypothetical "what-if" cases; and second, to ensure our system of separation of powers is secured. The standing condition is integrally tied to the Separation of Powers doctrine and without it, the Judiciary would be used as a tool by either of the other two branches against the other, or as an independent weapon to run roughshod over both.

With respect to oath accountability, this case cannot be brought before a court before satisfying the standing requirement. PatriotPost.US will attempt to meet this requirement through a class action suit, through "taxpayer standing." The general rule is that federal taxpayer standing does not exist, because the spending of federal funds is viewed by the Court as being too remotely connected to their source, a given U.S. taxpayer acting as taxpayer-plaintiff. The Court has held that such grievances are ordinarily more appropriately addressed through the political process at the polls, or within the representative branches. However, under relatively recent cases this doctrine has seen significant play within its joints.

Indeed, the concept of "taxpayer standing" was unheard of — rejected, actually — until Flast v. Cohen (1968). In that case, the activist Warren Court established the arbitrary standard that Congress had to violate a specific constitutional guarantee of some description using its Taxing & Spending Power before citizens could sue with standing as taxpayers. Later cases, such as US v. Richardson (1974), Schlesinger v. Reservists Committee to Stop the War (1974), and especially Hein v. Freedom From Religion Foundation (2007), effectively limited taxpayer standing to Establishment Clause cases — an even more arbitrary standard.

Even with the Establishment Clause delimiter, Flast set a "fanciful" (to quote one Supreme Court justice) standing requirement: the "taxpayer" must establish a "nexus" (connection) between congressional spending under the Tax & Spending Clause and the violation of the supervening constitutional provision ("Congress shall make no law..."). In those limited cases, a taxpaying citizen may assert standing as to that spending (example: direct allocations to pay for religious schooling) and sue the government to stop spending that taxpayer money in violation of the Constitution. We believe that if wingnut atheists with no true quantifiable, concrete grievances can establish "taxpayer standing" (as in Flast), certainly patriotic Americans with particularized injuries to our country, our wallets and our way of life should be able to, as well.

Even so, we are not counting solely on the courts to resolve this issue. PatriotPost.US will give the courts a chance to hear this case and if they refuse, it will take its case to the people.

Other Means to Oath Accountability

The second option for establishing oath accountability, should the courts refuse to recognize standing for this complaint, is petitioning the House and Senate to pass mandates regarding Oaths of Office. This is a very promising option given that the balance of power in Congress is shifting from Left to Right. However, this option will require a large number of citizen signatories.

Failing this, perhaps we should resort to a civil action under The Racketeer Influenced and Corrupt Organizations Act, which provides a cause of action for acts performed as part of a criminal organization.

For our part, we believe that the absence of any obligation by elected officials to abide by their oath to support and defend the Constitution renders many elements of the central government undifferentiated from organized crime syndicates, and PatriotPost.US will fight to ensure that our elected officials are held accountable to the Oath of Office each one of them has taken.