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.
Related Posts (on one page):
- Should Obama Retake the Oath of Office?
- Inauguration Tidbits:
- The Significance of the Flubbed Oath:
- Both the Chief Justice and the President Flubbed the Oath:
- Inaugural Oratory:
Dan Schmutter
Of course that depends on what the meaning of "take" is.
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.
Otherwise, I think what was stated is sufficient an oath.
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?
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.
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.
After the 20th Amendment the president elect becomes president at noon at January 20 the year after election.
Problem solved.
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.
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.
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.
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
BWAWHAHAHA! [fiendish laughter]
Jeez, sometimes it's just embarrassing to be an attorney....
Will future Judiciary Committees grill prospective CJ's on whether they can administer an oath without flubbing?
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.
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?
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.....
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.
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.
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).
No, because although he was president, he could not enter upon the execution of that office until he'd taken the oath.
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.
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.
PatHMV:
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.
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?
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).
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.
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.
I'm impressed.
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.
(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.)
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