Thursday, January 22, 2009

Only a Lawyer

Now we really know we have a new President: he's admitted a mistake. He and Chief Justice Roberts flubbed the Oath of Office on Inauguration Day, so last night they did it again. That tells us something else about our new President: he's a lawyer. Only a lawyer would re-take the oath -- "out of an abundance of caution."

So was Barack Obama really President on Tuesday afternoon and Wednesday morning? Yes, he was. The Constitution provides (amend. XX) that "The terms of the President and the Vice President shall end at noon on the 20th day of January . . . and the terms of their successors shall then begin." So Obama's term began at noon on Tuesday, oath or no oath.

The Constitution also provides (art. II) that "Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation:--'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.'" So Obama was President, but he was required to take that oath before he entered on the execution of his office.

So the real question is, are the official presidential acts President Obama took (e.g., nominating cabinet officials) before he re-took the oath valid? I would say yes. We could argue this endlessly -- it's not a complete slam-dunk either way -- but considering the purpose of the oath requirement, I would say that a good-faith effort to take the oath, such as occurred on Tuesday, is valid, notwithstanding minor slip-ups. The purpose of the oath requirement is not to invoke magical powers that are released by reciting the words in the precise, constitutional order. The purpose is surely to have a public statement of the President's commitment to the Constitution -- a statement that can impress the importance of that commitment upon both the President and the public. Intentionally changing the words of the oath would interfere with that commitment, but unintentional and immaterial mistakes would not. So I would say that retaking the oath was unnecessary, although it was good, lawyerly practice.

And by the way, those who suggest that no one would have standing to challenge the oath mixup are, in my opinion, completely wrong. Anyione adversely affected by any of Obama's presidential acts would have standing to claim that the acts are invalid because Obama isn't really President, or can't really execute the office of President, because of the oath mixup. So the legal analysis is necessary.

No comments: