SHOULD OBAMA RETAKE THE OATH?
Oath of Office - take two?
Several constitutional lawyers said President Obama should, just to be safe, retake the oath of office that was flubbed by Chief Justice John Roberts.
The 35-word oath is explicitly prescribed in the Constitution, Article II, Section 1, which begins by saying the president “shall” take the oath “before he enter on the execution of his office.”
The oath reads: “I do solemnly swear 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.”
In giving the oath, Roberts misplaced the word “faithfully,” at which point Obama paused quizzically. Roberts then corrected himself, but Obama repeated the words as Roberts initially said them.
A do-over “would take him 30 seconds, he can do it in private, it’s not a big deal, and he ought to do it just to be safe,” said Boston University constitutional scholar and Supreme Court watcher Jack Beermann. “It’s an open question whether he’s president until he takes the proper oath.”
This is truly a fascinating little tidbit of Americana. The oath, according to law, must be administered word for word. Since Roberts and Obama flubbed it, legally speaking, Obama had not fulfilled the Constitutional requirement to take the oath before assuming the presidency.
But then there’s the little matter of the 25th Amendment that made Obama president at 12 noon regardless of whether he had taken the oath or not. The amendment was passed to deal with crisis in a nuclear age with the death of a president and the immediate ascension of the Vice President to the office. The reasoning goes that the office of president can never be vacant, that if the president dies (or if both die) the next Constitutional officer in the line of succession automatically becomes president.
The article notes that both Calvin Coolidge and Chester Arthur took the oath twice. But both men were vice president at the time and Arthur, who was sworn in immediately, decided on a formal swearing in when he got back to Washington.
Coolidge, on the other hand, had his father, a notary public, swear him in upon hearing of the death of Harding. At the time, it was uncertain if a notary could actually swear in a president. To avoid confusion, Silent Cal had the Chief Justice swear him in when he got back to Washington.
In both of those cases, those men were following a tradition set down by John Tyler who ascended to the office of president following the death of William Henry Harrison in 1841. Constitutional scholars argue to this day whether Tyler was required to take the oath at all. (There was also a huge to do about whether Tyler was “Acting President” or actually possessed the office of president). There is nothing in the Constitution that clears up the matter and all vice presidents who have ascended to the presidency have followed Tyler’s example “for greater caution.” There is also great symbolic meaning to taking the oath which, in time of national emergency as when Kennedy was killed, can be an effective balm for the country.
But this situation is without precedent - flubbing the words of the oath. Is Obama really president? Yes, that much is clear. He was duly elected by the electoral college and the Congress certified it. From 12 noon yesterday, he was the legitimate president in the eyes of the law.
But challenges could still be forthcoming. If I were him, I’d give Roberts a call and invite him for lunch, taking the oath with a couple of witnesses “for greater caution.”
This blog post originally appears in The American Thinker
He may want to do it in private, but the new president assumes office at 12:00PM on the 20th of January, regardless of whether or not s/he has taken the oath.
Did you even bother to read the post? I said TWICE that he was president even if he didn’t take the oath.
Read the goddamn article before commenting.
ed.
Comment by headhunt23 — 1/21/2009 @ 1:56 pm
Actually, there is a provision in the Constitution that makes Chuck Tucson president, if there is a mix up. Seriously, you can look it up.
So, I guess, congratulations to me are in order. I’ll be here all day contemplating world affairs… and boobs, if anyone wants an autograph, I’ve got my presidential pen at the ready.
Comment by Chuck Tucson — 1/21/2009 @ 2:56 pm
1/20/13…. when we can dismiss this media-made political Messiah and return him to what he really is - a left-wing, Black activist/race hustler (albeit with a smoother voice and style).
Are we mere rubes in flyover country allowed to wonder why Jesus Obama has not released his medical and scholastic records and of course, his birth certificate? Oh we must be crazy. No same “conservative” would wonder those things, true, all you right-liberals?
Comment by bet — 1/21/2009 @ 3:03 pm
– a left-wing, Black activist/race hustler
Race-baiting while bashing Obama for being a race-baiter. Well done sir. Who says today’s Republican base can’t innovate while remaining pig ignorant and prejudiced?
Comment by Geek, Esq. — 1/21/2009 @ 3:23 pm
Geek, Esq. poor baby, can’t refute what I said, huh?
Duh, I feel so bad over what my ancestor’s did 300 years ago, that I will worship a lawyer, with no military experience, no private sector work experience, who allows himself to be promoted first as JFK, then FDR and now Lincoln. But the media tell me that he’s our Savior. The Messiah wants to grow government and shuns business, so he can redistribute money to his constituents, i.e., the “inner city”. Hmm, let’s see. Chicago run by Dems. Detroit (worst city in the country) run by Dems. Michigan (worst state economically in the country) run by Dems. Wash DC run by Dems. LA run by Dems. New Orleans run by Dems. Do I detect a pattern?
Why? Because Barry-boy is most definitely on a self-actualization journey, just as Palin said of him months ago. Barry-boy is in search of his sperm donor, African daddy, who abandoned he and his whacked-out leftist mommy. Talk about a racial/cultural cliche…. sperm donating then abandoning. Whew. Wanna take on that one, Geek, Esq.?
Only solution for the United States is to greatly reduce immigration, institute English and the official language and gently but firmly enforce American history and culture in schools and public square. Want to “celebrate” other cultures? Please exit at the border. We’ll both be happy then.
Without a reduction in non-English speaking, non-Caucasian immigration, the USA is doomed. Hard for libs on the left and libs on the right to accept that but reality is something adults need to deal with and not avoid.
1/20/13….
Comment by bet — 1/21/2009 @ 3:46 pm
bet,
You mean literally doomed? Or that your personal view of what the USA should be is doomed?
Comment by Chuck Tucson — 1/21/2009 @ 4:08 pm
Regardless of the flub, I think people should move on from the flub (I am not referring to your article, Rick, but, I have seen many on the right AND left getting all wonky on this) and realize he is pres.
Which will hopefully change on 1/20/2013
My interest was scholarly, if you will. I think it a fascinating addition to Americana and an interesting issue overall.
ed.
Comment by William Teach — 1/21/2009 @ 4:14 pm
faithfully execute vs execute xxx faithfully. It’s hard for me to see any significant difference. Obama had already said the word “execute” when he realized that Roberts had flubbed the literal wording, so the only way to retain meaning without a do-over was the “execute xxx faithfully” construct.
Agreed that he should do it again over lunch with Roberts and a few other witnesses. And make Roberts pay for lunch.
My copy of the constitution 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.” I don’t think any president has ever said “swear left paren or affirm right paren”. (According to “the internet” F Pierce and H Hoover affirmed).
Comment by Bill Arnold — 1/21/2009 @ 4:26 pm
I see the flub as one of God’s little pranks.
Like giving us the choice of whether to become an Obamanation.
Comment by John Howard — 1/21/2009 @ 4:59 pm
Chuck Tucson - I mean literally dooomed, as some deep thinkers like Lawrence Auster, John Derbyshire, Peter Brimelow and the late Professor (forget his name “Clash of Civilizations” and “Who Are We?”, Samuel Hunnington?) have all said.
Why? Because race and culture matter. Latinos, Asians, Arabs, Blacks, etc. do not have any history of “diversity” or tolerance or openness or pluralism - those are white, European-based, English speaking people’s customs and values.
But there is a point, when the numbers rise to a level where the non-white outnumber the white. We are not there yet, there are still some 200 million caucasians in this country but alas, many are guilt-ridden, limp-wristed liberals (on the left and right).
The reason why the USA is (was) the greatest nation in history is BECAUSE of Judeo-Christian, English language, Caucasian based (often Protestant values) society. Free market economics, freedom of the individual, freedom of speech and religion and to assembly. Those are “foreign” values to most around the world, who are and have been very much “group oriented”.
These are not always pleasant things to discuss or even think about but reality demands it. And our country demands it. If we were founded by Muslims or Latinos or Mongolians, would we be as we are? Of course not.
Comment by bet — 1/21/2009 @ 5:23 pm
On my reading of it, he lawfully became President, but can’t exercise any authority until he gets it right.
The 20th Amendment (not the 25th) stipulates that Presidential terms end at noon on January 20, “and the terms of their successor shall then begin”. So Obama became President at noon, yesterday.
But the body of the Constitution, in Article II, Section 1 (the part that specifies the oath of office), requires that: “Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation . . .”. (emphasis added) This requires that the Oath precede actually “executing” the Presidency, which is to say exercising the powers of office. It does not literally say that a person who did not take the Oath would not in fact be President, but it implies they could not “execute that Office”.
Implicitly, from Article II, and explicitly, from the 20th Amendment, Obama is President, but if he has not yet taken the Oath as the Constitution requires, he cannot act in that capacity.
Great analysis. That must be where the constitutional experts see the possibility of a challenge - theoretically. In practice, I don’t believe any court would come within 10 miles of a case. As we saw with the ridiculous citizenship challenges, who would have standing to challenge? Congress? A Congressman? Biden?
Fascinating…
ed.
Comment by Kevin T. Keith — 1/21/2009 @ 5:54 pm
Wow bet… just… wow.
Comment by Chuck Tucson — 1/21/2009 @ 7:04 pm
bet: I just assume that the logical flaws in white supremacism don’t need to be pointed out. It’s a vulnerability of mine when I debate the David Duke crowd.
Comment by Geek, Esq. — 1/21/2009 @ 7:08 pm
As if anyone in Washington give a flying f*** about the oaths they take.
Comment by Guy Murdoch — 1/21/2009 @ 8:21 pm
I think there is no requirement in the Constitution of who administers the Oath of Office. Which begs an interesting question: who did Washington swear the oath to, and in what forum? There was no tradition, and no Chief Justice, when he first took office.
An interesting bit of Americana indeed. I now find I have the need to find out about when it became tradition to have the Chief Justice do the honors. Thanks for the prompt.
The chief justice administering the oath has a long history but there are numerous exceptions. As for Washington, if I remember my Flexner, his good friend Robert Livingston administered the oath. I believe Livingston may have been the governor at the time but I may be wrong.
ed.
Comment by Allen — 1/21/2009 @ 8:25 pm
As an academic exercise, the interesting parts seem to be defining “successors” in regards to Section 1 of the Twentieth Amendment as well as defining “qualify” in regards to Section 3 of the Twentieth Amendment.
I think most would link the “qualify” to Article 2, Section 1 (natural born citizen, 35 years old, etc), but it’s certainly not explicit. One reading of the “successors” language could be read to refer to line of succession. I wouldn’t read it that way, but the whole discussion is interesting nonetheless.
As to who would have standing? It would seem Congress as a body would. They’re granted the power to mandate by law in the case where neither the President nor the Vice President has qualified. If “qualify” includes executing the oath, anyway…
Regardless, as everyone admits, Obama is President.
Comment by sota — 1/21/2009 @ 8:29 pm
Only Democrat trash would push this one, and only if Obama were a Republican. Look for McCain and his ilk to join with like-mindless Democrats and call the constitution hate speech or something. Better efforts should be focused on retaking Congress in 2010 and the White House in 2012 as this left-wing cabal drives the economy further into the ground and the populace realizes “hey, their bullshit didn’t work.”
Interesting as trivia, though.
Comment by obamathered — 1/21/2009 @ 8:41 pm
Oh, my God. It seems the oath was re-administered. Which can only mean that Obama is listening to Moran. We are so f—ed.
Comment by michael reynolds — 1/21/2009 @ 10:24 pm
It’s moot now. Obama was re-sworn tonight at 7:35 pm EST in the WH Map Room. The relevant persons wanted no question as to who is the lawful president and to establish that following Constitutional requirements are important.
Now, about that Birth Certificate…
Comment by Indigo Red — 1/21/2009 @ 10:52 pm
First time browser… long time… er not so much. So with a name like rightwing nuthouse I expected more nuttery from the author. That was a thoughtful, well written essay, well done.
But you do get some serious wingnuts in the comments section, but I imagine the wingnuts must migrate to your site like moths to a flame hoping to hear someone ape the talking points they live by, and not finding that, I guess they must decide to shave their heads and hold little klan rallies of one in their parents’ basement, breathlessly tapping away at their keyboards with two fingers.
cool site, I’ll put it on the shortlist for now.
Thanks…I think. It might interest you to know I get more racist liberals for some reason than conservatives, although I can’t deny I receive a fair share of righty loons.
ed.
Comment by John — 1/21/2009 @ 11:09 pm
As an aside:
The man who ran on his “faith” and the “faith” of his “Christian” mother and grandparents from Kansas, did not retake the1 oath with his hand on the Bible. Seems there just wasn’t one handy. Was the White House cleansed of all Bibles when President and Mrs. Bush moved out?
Fakeout #1?
Comment by retire05 — 1/22/2009 @ 10:14 am
That’s assuming there was a copy in the White House to begin with.
Comment by Chuck Tucson — 1/22/2009 @ 12:34 pm
Retire05:
Okay, you got us. First there was the inaugural shout-out to unbelievers. Now this. There’s no point trying to hide it any longer: the Atheist-Socialist Alliance (meetings on Thursdays, 8 pm, you’re all invited) is preparing its long-feared takeover of America.
And we’re starting with you, Retire05. Because you are our most formidable opponent. You alone see what no other has. So we’re coming to your house to arrest you, detain you, and brainwash you in our re-education camp. (Or in your case, education camp.)
If were you I’d stay inside, lock my doors and look out for black helicopters.
Comment by michael reynolds — 1/22/2009 @ 12:45 pm
John: Rick’s essays are as far removed from nuttiness as you can get. Read the archives. I really enjoy him pointing out some of the left’s silliness, without resorting to it himself.
The nuthouse… is usually here in the comments.
Comment by Scott — 1/22/2009 @ 12:58 pm
@indgo red:
http://www.factcheck.org/elections-2008/born_in_the_usa.html
I assume you’re referring to the “discrepancies” Corsi detailed in the PR release of Obama’s birth cer — apparently no raised seal, what appeared to be a Photoshop watermark, etc. Factcheck.org got hi-res scans of the original (available at the link above). You may consider them to be a questionable source, but I’ve been impressed with their even-handed fact-checking of both parties, and the evidence in the link seems pretty solid. They’ve even got a link to a photo of a Hawaii newspaper with his birth announcement, which apparently was uncovered by a conservative investigator. Is there another issue with his birth cert aside from these issues?
@bet:
“Why? Because race and culture matter. Latinos, Asians, Arabs, Blacks, etc. do not have any history of “diversity” or tolerance or openness or pluralism – those are white, European-based, English speaking people’s customs and values.”
So you’re arguing for ethnic purity because caucasians are the only group capable of handling diversity. That is certainly an . . . interesting approach.
Comment by busboy33 — 1/22/2009 @ 3:32 pm
Michael Reynolds:
you forgot the coalition partner of united, transgender, jewish freemasons. Then you’ve got the take-over. Wait, my bad; I forgot to include Rev Wright.
Comment by funny man — 1/22/2009 @ 5:20 pm
The official photo of the second swearing-in shows Obama not resting his left hand on a Bible. Is a Bible required or is it simply tradition?
Purely tradition. Used to be required in court but not any more.
ed.
Comment by Steve Cornelius — 1/22/2009 @ 6:46 pm
Guess the folks who take care of Abe’s bible would not loan it out again for the re-oath and I’m sure NOBODY in the new administation had a bible he could us for the photo op.
I’m just wondering, if you want to be historically correct obama is our first BI-RACIAL President. Why was his white mother never mentioned during all the ADORATION of his inaguration? Kinda makes me think he is ashamed of her.
I feel disinfranchised as a white woman.
I wish him well and hope he can improve matters but I ain’t holding my breath.
Comment by Drewsmom — 1/25/2009 @ 9:58 am
Eight presidents were sworn in by someone other than the Chief Justice of the U.S. Supreme Court, the last being Lyndon Johnson on November 22, 1963. My personal favorite is Calvin Coolidge’s first swearing in, which was done by a Notary Public (his father).
Comment by still liberal — 1/27/2009 @ 10:24 pm