Should Obama Retake the Oath of Office?

Carolyn Lochhead has an interesting story in the San Francisco Chronicle on the flubbed oath at yesterday's inauguration:

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."

The courts would probably never hear a challenge, and some might argue that Obama automatically took office at noon because that's when President Bush left the office. But because the procedure is so explicitly prescribed in the Constitution, Beermann said if he were Obama's lawyer, he would recommend retaking it, just as two previous presidents, Calvin Coolidge and Chester Arthur, did under similar circumstances.

Dan Schmutter:
Seems to me that the oath the President did take is semantically identical to the one required by the Constitution. Therefore I would be shocked if any court held that he did not take the oath.

Dan Schmutter
1.21.2009 4:06pm
Skyler (mail) (www):
Yes, let's please be literalists on a slight tongue tripping on a fluffy silly oaths, but when it comes to deciding whether a woman's right to control her procreation conflicts with a fetus' right to life, let's just start making things up.
1.21.2009 4:08pm
Randy R. (mail):
And then we wonder why lawyers have such a bad reputation.
1.21.2009 4:11pm
Mikeyes (mail):
Doesn't the President sign that oath in private before the public uttering? It seems that should suffice since the Constitution states that the President has to "take" the oath, not speak it.

Of course that depends on what the meaning of "take" is.
1.21.2009 4:11pm
NTB24601:
Are we certain that President Obama hadn't already taken the oath before the ceremony?
1.21.2009 4:12pm
Fugle:
Skyler:

Careful about your comments friend, you may be first against the wall when the revolution comes. One does not “make up” penumbras (nor the shadows emanating from them). If you were as enlightened as the “New Coke” President and his advisors you would see that.
1.21.2009 4:14pm
Leland (mail):
I just ask that next time, while setting up the schedule for Aretha Franklin, Yo Yo Ma, and Elizabeth Alexander; please put in some time for a rehearsal for the part of the inauguration that is actually spelled out in the US Constitution. Heck, they could have taken a minute or two to walk through the steps in the Capitol crypt.

Otherwise, I think what was stated is sufficient an oath.
1.21.2009 4:17pm
Johnny Canuck (mail):
Dan Schmutter:
Seems to me that the oath the President did take is semantically identical to the one required by the Constitution.


Isn't this the correct answer since:
1. I will faithfully execute the office of president of the United States (constitution)

2 I will execute the office of president of the United States faithfully (Obama)

3. I will execute faithfully the office of president of the United States (CJ, the second time)

If the incorrect word order changed the meaning, or if a different incorrect word had been substituted, no matter how closely synonymous in meaning, I can see why you would re-do; but why in this case?
1.21.2009 4:23pm
Charlie (Colorado) (mail):
Seeing as the 20th Amendment said he'd been President for six-odd minutes already, isn't this whole argument moot?
1.21.2009 4:28pm
Sagar:
"A do-over "would take him 30 seconds, he can do it in private, ..."

if Obama took the oath in private and no lawyers heard it, did he actually do it?

no wonder lawyers are considered by some to be a net drag on the productive society.
1.21.2009 4:33pm
Aeon J. Skoble (mail):
Not impressed by "semantically equivalent." The Chief screwed up and the constitutionally-prescribed oath was not taken. BUT: in other threads here at VC, I have seen the convincing case made that Obama became president at noon, oath or not, because the 20th Amendment says that's when the old term ends and the new one begins. Art. II sec 1 says he must take the oath before _doing_ anything as president, but he's president at noon regardless. Also, it's been noted by others that the Constitution doesn't require the oath to be taken at a huge public ceremony with the CJ presiding. Obama could just say it on his way to the limo, mission accomplished. Indeed, I wouldn't be surprised if he did just that.
1.21.2009 4:34pm
Aeon J. Skoble (mail):
Old but on-point:
Only I hit Walter in the nose.
I only hit Walter in the nose.
I hit only Walter in the nose.
I hit Walter only in the nose.
I hit Walter in the only nose.
I hit Walter in the nose only.
1.21.2009 4:36pm
vassil_petrov (mail):
Calvin Coolidge and Chester Arthur were presidents before 20th Amendment?
After the 20th Amendment the president elect becomes president at noon at January 20 the year after election.
Problem solved.
1.21.2009 4:38pm
Dave N (mail):
Two quick notes:

1. Yesterday on another post, several commenters made persuasive arguments that the President term starts at noon on January 20, oath or no oath--because of specific language in the 20th Amendment. As a result, the Arthur and Coolidge precedents are irrelevant. (Neither Article II nor the 12th Amendment have a specific time provision). Additionally, both Arthur and Coolidge were Vice Presidents succeeding to the Presidency upon the death of their respective predecessors.

2. The correct 35 words were spoken, though not the precise order. This should not change in any way the fact that President Obama took the oath of office.
1.21.2009 4:48pm
gasman (mail):

Carolyn Lochhead has an interesting story in the San Francisco Chronicle on teh[sic] flubbed oath at yesterday's inauguration:

Does the oath really need a do-over, or shall we just consider it a minor gaff that can ordinarily be ignored. Now if he had had his fingers crossed while saying the oath then all bets are off.
1.21.2009 4:57pm
Tucker (mail):
'teh flubbed oath'? That was intentional, right? ;)

I didn't vote for Obama, but give the poor guy a break. He and Robert's should re-do the darn oath just to head off this sort of silliness.

I imagine the two of them feel just awful about the whole thing, and no doubt now have great sympathy for Mr. Neal Armstrong.
1.21.2009 4:58pm
Prof. S. (mail):
How do we know he hasn't already? It's been awhile since I read it, but I don't recall seeing something in the Constitution about the oath needing to be nationally televised.
1.21.2009 4:59pm
Dan Schmutter:
Aeon -

I think you are wrong here. You're Walter-nose-hitting illustration is different than the situation here.

Unlike in your example, "to faithfully execute 'X'" is exactly equivalent to "to execute 'X' faithfully," which is also equivalent to "to execute faithfully 'X'"

Just as "to boldly go," is no different than "to go boldly."

Dan Schmutter
1.21.2009 5:01pm
PatHMV (mail) (www):
This is why all that "joking" yesterday about "who was president from noon to 12:10" was not only silly but detrimental. It is beyond stupid for any serious person to waste time on this. Obama is the President. Period. Full Stop. Some people somewhere are going to start taking this too seriously.
1.21.2009 5:03pm
R Gould-Saltman (mail):
That's right! BHO didn't take the right oath! That means he's not really President! Since Bush's term ended 1/20 at noon, and Biden DID take the right oath, BIDEN'S THE PRESIDENT! MY FIENDISH PLAN IS COMING TO FRUITION!

BWAWHAHAHA! [fiendish laughter]



Jeez, sometimes it's just embarrassing to be an attorney....
1.21.2009 5:04pm
Duffy Pratt (mail):
He'll get his do-over in four years if he's lucky.

Will future Judiciary Committees grill prospective CJ's on whether they can administer an oath without flubbing?
1.21.2009 5:10pm
Sarcastro (www):
R Gould-Saltman you're wrong. Anything Obama does now is unconstitutional. He's only able to act as President by dint of fraud. As is the case with fraud, the whole election is rescinded. America gets a do-over!!
1.21.2009 5:11pm
Allan L. (mail):
Well, why wouldn't they do it over? I can't think of a good reason, other than fear that they would screw it up yet again.
1.21.2009 5:13pm
PatHMV (mail) (www):
Allan... in part because doing it over again would be admitting that it matters at all. The fact that they thought it was important enough to do over again would be evidence that even the President and the Chief Justice agree that it was necessary to do it over again in order to be valid. Doing it over again at this point would thus call into question all of the actions President Obama has taken since yesterday at 12:10.

Why SHOULD they do it again? I mean, I'm about as textualist as they come when it comes to interpreting the Constitution, and I think that to suggest that President Obama isn't really the President because of some minor garble in the words of the oath borders on the insane.
1.21.2009 5:27pm
Howard Whitney (mail):
It does not matter. As we all know,he takes the real oath in secret as the newest 33-degree Mason.
1.21.2009 5:33pm
Guest101:
Evidently becoming President of the United States is akin to seeking the Necronomicon.
1.21.2009 5:42pm
Alfonso Bedoya Jr. (mail):
Did Obama "take" the oath when he recited it or when he assented to Roberts' recitation of the oath?

In every courtroom I've been in, the clerk recites the oath (usually really fast in one word "doyousolemnlysweartotellthetruth thewholetruthandnothingbutthetruth?") and the witness says "yes", or "I do", or "uh-huh", and that's good enough.

I'm sure there's all sorts of really old law on the question of "what constitutes 'taking' an oath" that I'm not interested enough to look up. But if one of you law professors ends up publishing an article on the subject, I want credit in footnote 1.

Not to mention, if we're being hypertechnical, if Obama had said "I, Barack Hussein Obama, 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, so help me G-d," isn't that also incorrect, because neither "Barack Hussein Obama" nor "so help me G-d" is in the text of the Constitution?
1.21.2009 5:51pm
Randy R. (mail):
I thought this whole question a bit bizarre, until I learned that the righwingnuts are going crazy over this, convinced that Obama isn't really the prez.

That just makes it more bizarre. But I hope they press the issue -- it will prove them even more irrelevant to the political dialogue than they already are.....
1.21.2009 6:01pm
man from mars (mail):
Several commentators have stated that the Obama Oath is "semantically equivalent" to the Oath required in Article 2, Section 1. As I noted in this comment, I disagree. Obama's version is different semantically from the Constitution's version in two ways:

First, by moving the word "faithfully" from the beginning of the oath to the middle, the emphasis changes. In the Constitution's version, it is the faithfulness of the execution that is paramount. But in Obama's version, it is the execution itself that is paramount.

Second, Obama's version attenuates the link between the Oath of Office in Article 2, Section 1 and the Take Care clause in section 3, which also uses the phrase "faithfully execute." This link is important in legal theories of executive review, for example.

Even if Obama's version were "semantically equivalent" to the wording specified in the Constitution, the Constitution still controls. And the Constitution puts the Oath in quotes. Semantically equivalent substitutions are not allowed. Indeed, the wording was specifically hashed out in the debates between Madison and Wilson - Wilson argued the generic, quotation-free, oath in Article 6 would suffice but Madison insisted on the present version.

I don't know whether Obama should or should not retake the Oath. But if he does not swear or affirm that he will faithfully execute the Office of the President as required by the Constitution, then he will not have faithfully executed the clear, specific, and unambiguous requirements of Article 2, Section 1.
1.21.2009 6:11pm
NaG (mail):
One thing is for certain: future Chief Justices will be sure to bring a written copy of the oath with them just in case.

To me, this Obama thing is a non-issue -- a Trivial Pursuit question at best. A more interesting intellectual exercise is to ask whether a person can become President if they refuse to take the oath based on some moral or religious belief.
1.21.2009 6:25pm
Dave N (mail):
NaG,

Herbert Hoover (a Quaker) refused to take oath--so he "affirmed" it instead. So did Richard Nixon in one of his two inaugurations (I think the second one).
1.21.2009 6:29pm
Seamus (mail):
Surely there's a notary public working in the West Wing who could administer the oath and keep it on file.
1.21.2009 6:31pm
gasman (mail):
Did Hilary get it right when she was simultaneously taking the oath?
1.21.2009 6:32pm
Seamus (mail):
Seeing as the 20th Amendment said he'd been President for six-odd minutes already, isn't this whole argument moot?

No, because although he was president, he could not enter upon the execution of that office until he'd taken the oath.
1.21.2009 6:32pm
Brett Bellmore:
I'm not at all impressed with the notion that the oath requirement was implicitly repealed by the 20th amendment, just because the 20th amendment doesn't mention the oath. It doesn't mention the requirement that Presidents be 35 years of age, or natural born Americans, either; Does this implicitly mean that foreign minors have been qualified to be President since it was ratified?

We've got a formal amendment process, and "implicit" doesn't jibe with "formal".

Yes, Obama should take the oath actually prescribed. But he probably won't, because that would amount to admitting the primacy of the actual text of the Constitution over whatever turns out to be convenient.
1.21.2009 6:32pm
PatHMV (mail) (www):
Brett, trying to turn this into an issue akin to the Court's law-making in the guise of Constitutional interpretation is foolish. It's not the same. One can be a staunch textualist (I am) and still not take the position that Obama isn't President because of some barely-garbled oath. Trying to conflate the two makes it harder for our side to be taken seriously by the general public.
1.21.2009 6:53pm
Joseph Slater (mail):
PatHMV is entirely right This whole "issue" is the epitome of you must be f'n kidding me.
1.21.2009 7:01pm
Aeon J. Skoble (mail):
Dan-
I'm not denying that they're logically equivalent expressions. But that's irrelevant. The constitution mandates a particular expression. It _doesn't_ say "or whatever might be logically equivalent." Could he utter the French or Russian translation of the oath? He must take the oath as written in the constitution before executing any powers of his office, although as I and a dozen others have now noted, he could do this at any time without the Chief and probably already has.
1.21.2009 7:07pm
pluribus:
Allan L.:

Well, why wouldn't they do it over?

PatHMV:

Why SHOULD they do it again?

Since so many of us are strict textualists now, I will break it to you. "They" don't have to do diddly. The Constitution requires only that "he" take the prescribed oath or affirmation. The chief justice is an interloper in the constitutional process. I am willing to allow that "he" may be expanded to include "she" in futuro, but not on strict textualist, but only living constitution, grounds.
1.21.2009 7:17pm
PatHMV (mail) (www):
Every second wasted talking about this stupid, STUPID issue is a second not spent pointing out that one of President Obama's first actions was to undo the "Mexico City" rule, in order to allow U.S. funds to be used by foreign doctors receiving U.S. aid to perform or promote abortions.

There are many, many serious issues on which we will need to do battle with the new administration. Do any of you arguing against this oath foolishness seriously believe that doing so will help us in any way in more important fights?
1.21.2009 7:17pm
Guest101:

Every second wasted talking about this stupid, STUPID issue is a second not spent pointing out that one of President Obama's first actions was to undo the "Mexico City" rule, in order to allow U.S. funds to be used by foreign doctors receiving U.S. aid to perform or promote abortions.

He also halted the military tribunals at Guantanamo. Man, it's been a great day and a half. (Though I agree that the oath issue is a stupid distraction).
1.21.2009 7:22pm
ReaderY:
I'm also a pretty staunch textualist, and I also think this argument is pretty silly.
1.21.2009 7:28pm
ReaderY:
To be more specific, this argument strikes me as being equivalent to the tax protestor arguments that the 16th Amendment isn't valid.
1.21.2009 7:32pm
Jerry F:
I don't think it would do for Obama to take the oath correctly at this point. The Constitution is clear that the President must take the oath before he enters the execution of his office. Since Obama is claiming to have entered execution of his office without having faithfully taken the oath, he should lose his office.

Relatedly, since Obama cannot be President and since Bush stepped down as President, could an argument be made that Dick Cheney is now President of the United States until his successor is elected? I am aware that the left-wing Supreme Court would probably not allow this, but it would be really awesome if true.
1.21.2009 7:33pm
David Schwartz (mail):
Since most previous Presidents did not take the oath publicly word-for-word as it appears in the Constitution, this can't possibly matter. This is a hair on a flea that is itself on a flea.
1.21.2009 7:34pm
pluribus:
PatHMV:

Every second wasted talking about this stupid, STUPID issue is a second not spent pointing out that one of President Obama's first actions was to undo the "Mexico City" rule, in order to allow U.S. funds to be used by foreign doctors receiving U.S. aid to perform or promote abortions.

How many seconds have you spent talking about this stupid, STUPID issue? All work and no play, makes PatHMV a dull boy. BTW, Pat HMV, I completely disagree with you about this issue. It is stupid, stupid, STUPID.
1.21.2009 7:34pm
NickInSC (mail):
According to CNN, he just did retake the oath in the Whitehouse with a small pool of reporters present.
1.21.2009 8:00pm
man from mars (mail):

According to CNN, he just did retake the oath in the Whitehouse with a small pool of reporters present.


I'm impressed.
1.21.2009 8:06pm
Allan L. (mail):
As a pilot of a multi-engine aircraft, I think it's unlikely that the port engine will fail en route, but in an abundance of caution, I fire up the starboard engine as well. This need not be taken as a sign that I consider the port engine defective.
1.21.2009 9:30pm
uriahms (mail):
I disagree that Obama became president automatically at noon. The only significane of 12 noon January 20th comes from Section 1 of the 20th Amendment which states that the terms of the former president and vice-president ended at 12 noon. So in effect Joe Biden was president unitl Obama was sworn in properly. Now, Article II section I of the constitution explictly says that before he can execute the office of president he must take the oath. The oath is in quotes so it means it MUST be said as worded before he actually becomes president. I'm glad he took it again.
1.21.2009 9:33pm
David Warner:
The oath kerfluffle is exhibit 1A of the childish things we need to leave behind, if only temporarily.
1.21.2009 9:48pm
Brett Bellmore:
Feh. It's not a big deal in and of itself, he could recite the oath in pig latin for all I care, (And for all he's likely to feel bound by it.) except for one thing: If a President isn't willing to comply with what the Constitution actually SAYS he has to do, even when the cost of compliance is genuinely trivial, a few minutes and breaths, how likely is he to stick by it when it costs him something to be faithful to it?

It doesn't mean much in itself, but it's a useful sign of his attitude towards the highest law in the land. So I'm glad to hear he did eventually take (Not "retake", since he didn't take the prescribed oath the first time.) take the oath.

If nothing else, he's learning not to stubbornly make trouble for himself.
1.22.2009 6:06am
MikeS (mail):
The question of the "botched" oath is astonishingly stupid. That the only people making a fuss about it are extreme right-wingers is instructive.

(And arguments that because X didn't take the oath correctly, the president is now Y, who didn't take the oath at all, are stupider still.)
1.23.2009 3:23am

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