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Wednesday, January 21, 2009

How specific the oath?

A lot of smart, sane people are saying that, purely in an over-abundance of caution, Obama either has or should retake the oath in private. Obama spoke all the words contained in the Clause. The argument seems to be that, because the Oath Clause contains quotation marks, it requires that the President recite the precise words in the precise order. Even if this is just an over-abundance of caution, those recommending the do-over seem to acknowledge, implicitly, there is a colorable argument there that at least could make for genuinely troubling litigation or conflict.

But why is it even is a colorable argument that a do-over could be necessary (even putting standing and political question issues to one side)? The problem with the quotation-marks argument is that Obama (and just about every President before him) added language to the oath, namely "so help me God," which does not appear in the Oath Clause. Can it really be that the President can add extra words if he wishes, so long as the required words are spoken in the correct order? That seems like a very odd reading of the Clause, partially formalist and partially pragmatic. That also leaves open the possibility that Congress could provide by law for an oath that added new language--maybe the "I take this obligation freely, without any mental reservation or purpose of evasion" language that appears in the oath for all other federal officers and employees--so long as the constitutional language remained as it appears in the Constitution.

One way around the "so help me God" add-on language rests on the fact that the President must "swear (or affirm)" and swearing presumes an oath to God. So when a President chooses to swear rather than affirm, as everyone does, "so help me God" is implicit in swearing, so making it express is not really adding new or additional language to what is quoted, which must be recited verbatim.

Maybe. And if the only requirement is that the quoted words be spoken, regardless f order, we could hypothesize the extreme example of a President who utters the words of the oath backwards or in completely random order such that it makes absolutely no grammatical sense--has he truly taken the oath?

Update, 10 p.m. E.S.T:

Obama retook the oath with Roberts at the White House this evening. (H/T: Orin). Of course, as some of the comments to Orin's post show, some people may now try to argue that everything Obama did between noon Tuesday and Wednesday evening is not valid or binding.

Posted by Howard Wasserman on January 21, 2009 at 03:27 PM in Current Affairs, Law and Politics | Permalink


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This issue was just discussed on NPR, where it was noted that some presidents have only said "I do." (apparently this was standard procedure until the late 19th century) My hunch is that it is fine as it is (and I agree with Bruce that a do-over risks invalidating any actions taken before it), but I was pretty sorry to see it happen. It was so moving to see Obama using the Lincoln bible, and such a momentous occasion, that the error was a real shame.

Posted by: Kalyani Robbins | Jan 21, 2009 7:33:40 PM

Note that getting re-sworn would not be so harmless now, as a number of things Obama has already done would be implicitly invalidated.

Also, as a commenter on Volokh pointed out, small departures from the text have been made for years. E.g., presidents usually insert their name into the oath.

Posted by: Bruce Boyden | Jan 21, 2009 6:09:46 PM

Well, the constitution surely does not prohibit the President from ever speaking again after taking the oath. So surely the President can swear the proper oath without "so help me God" and then, 10 minutes later, say "So help me God" to himself. But this becomes impossible to parse out as a practical matter. There is no way to distinguish between (1) saying the constitutionally prescribed oath and then beginning a new sentence and (2) taking the "wrong" oath by adding words to the beginning or the end of "the oath" (single entity). On the other hand, it is perfectly possible to distinguish between saying the constitutionally prescribed words in the right order and failing to do so.

Posted by: TJ | Jan 21, 2009 6:04:59 PM

As for the standing argument: For the same reason that all the claims about Obama's citizenship failed: No individual has standing to assert a "generalized grievance," a harm that all suffer equally simply by being governed by a person who did not properly take the oath. Now, I suppose someone uniquely harmed by a law could have standing to challenge the validity of the law on presentment grounds (i.e., the person who signed it is not able to exercise the powers), but that would run headlong into a political question argument.

As for your argument that adding words is OK so long as the quoted words are spoken in the right order: Why? You say it's reasonable, but why?

Posted by: Howard Wasserman | Jan 21, 2009 4:31:12 PM

I completely do not understand the standing argument. Obama will be making decisions as president. Those decisions will create specifically aggrieved people. The specifically aggrieved people will sue to overturn the decisions, arguing that he is not really president and has no right to make those decisions, and they are thus null and void. I find it difficult to understand why those people would not have standing.

On the oath issue, I think it a reasonable argument that you can add anything before and after the words in the constitutional text; but the constitutional text itself must be recited and in the right order. The one complication is that the constitutional quote does not in fact have the president's name inserted after the "I"....

Posted by: TJ | Jan 21, 2009 4:19:58 PM

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