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What Part of Your Oath of Office Don't You Understand?

by Charles Kuck

I have been thinking a great deal recently about all of these state immigration bills proliferating around the United States, and the direct affront that many of them are to the U.S. Constitution. I wonder, do you violate your oath of office as an elected official, whether it be at the local or state level, if you advocate for and work to pass a bill that you know is unconstitutional? We are not talking about just advocating for a change of law within the parameters of the Constitution, but rather actively working to subvert the Constitution and Constitutional principles.
For example, a state senate committee from Arizona's state legislature recently approved a bill

. . . that would deny automatic citizenship to the children of illegal immigrants, a measure designed to set up a possible U.S. Supreme Court case on the issue. [...]Sponsors of the automatic citizenship bill approved by the Senate panel hope it will prompt a court interpretation on an element of the 14th Amendment to the U.S. Constitution, which guarantees citizenship to people born in the country or who are "subject to the jurisdiction" of the U.S.

Consider that in passing this bill, the state senators who voted for this KNEW the bill was unconstitutional, and were hoping the Supreme Court would change the law. They did this despite the oath of office they had taken. When a state legislator in Arizona is sworn in, this is the oath they take:
I, _____________________________do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of _____________ according to the best of my ability, so help me God (or so I do affirm).
So, by passing a bill, the legislator KNOWS to be unconsitutional, how are they not violating their oath of office, and thus become subject to impeachment?
The same could be said for Georgia legislators who insist on passing legislation that they know has been found unconsitutional in other states. But, in Georgia, the penalty is slightly different:
Georgia law provides that any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.
OCGA § 16-10-1.
So, should these anti-immigration pieces of legislation pass as currently written in their unconstitutional state, who is going to prosecute the state legislators? And, then do they not also violate the "rule of law" in our "nation of laws," that they claim to cherish? Perhaps this is all just in the eye of the beholder, but it seems many folks are leaping BEFORE they are thinking. Or, they are just hypocrites.

About The Author

Charles Kuck is the Managing Partner of Kuck Immigration Partners LLC-The Immigration Law Firm, and oversees its nationwide immigration practice. His practice focuses on U.S. Immigration and Nationality Law and international migration matters. Mr. Kuck assists employers and employees with business and professional visas, labor certifications, immigrant visas, consular representation, and citizenship matters. Mr. Kuck also maintains an active Federal Court practice focusing on immigration issues.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.