Interesting that they waited until Wednesday night, since an "abundance of caution" would suggest that such action be taken before any of his official actions (freezing wages, halting rulemaking, etc.)
So Obama didn't have the power to create a National Day of Renewal and Reconciliation, now did he? I refuse to celebrate it on the grounds that it's an unconstitutionally created holiday.
No one has standing to challenge his nominees. The wage freeze could conceivably be challenged, but would be dismissed as moot when he re-issued the same order. And in my personal opinion, it's all irrelevant anyway--the 20th Amdt. seems clear that he became President at noon, and if it was in conflict with Article II, then the amendment would control, given that it was added to the Constitution later.
It is a bit funny that Roberts administered the oath again. Obama could have said the oath in front of anyone and it still would have "counted". There's nothing fundamental about the Chief Justice doing it.
It is a bit funny that Roberts administered the oath again. Obama could have said the oath in front of anyone and it still would have "counted". There's nothing fundamental about the Chief Justice doing it.
Well, any judge or notary public--that is, anyone legally qualified to administer oaths. I agree that it's funny, but no doubt the Chief Justice was mortified about his screw-up and happy to make amends.
actually he could just claim he said it under his breath the right way right after the "bad" one...eliminating all questions..no requirement that it be witnessed by anyone or that it be audible.
Well, any judge or notary public--that is, anyone legally qualified to administer oaths.
Recall that Coolidge was sworn in by a Vermont justice of the peace (his dad), and there was an issue whether Pa Coolidge was authorized to administer a federal oath.
People with standing to challenge Obama's appointments might include any criminal placed under arrest by the FBI under the direction of an unconstitutionally appointed Attorney General.
As far as the oath, is there any reason signing his name on a piece of paper with the oath typed on it wouldn't be sufficient? People submit written affidavits to courts all the time, and they are treated as if they are given under oath, under penalty of perjury.
As far as the oath, is there any reason signing his name on a piece of paper with the oath typed on it wouldn't be sufficient?
Or Obama could've dropped an e-mail to Roberts. Or Roberts could've read it out over the phone, and Obama could've said, "Word." Or Obama could've showed up at the Court, shot Stevens dead, and then said, "Say 'faithfully' again, muthaf--ker!" a la Samuel L. Jackson.
Come on, everyone -- what's YOUR favorite oathtaking scenario?
Wow, Obama acts out of an abundance of caution to head off the conspiracy nuts. Good for him. Why did he not do take that sort of approach during the campaign and stop the kook 'citizenship' lawsuits?
Wow, Obama acts out of an abundance of caution to head off the conspiracy nuts. Good for him. Why did he not do take that sort of approach during the campaign and stop the kook 'citizenship' lawsuits?
Campaigns are different from governing. During a campaign, acknowledging the crackpots could be used as campaign fodder against you. Once the election is over you don't have to worry abotu that (for a little while at least).
Wow, Obama acts out of an abundance of caution to head off the conspiracy nuts. Good for him. Why did he not do take that sort of approach during the campaign and stop the kook 'citizenship' lawsuits?
Maybe because he's not actually trying to mollify the paranoid, but rather to make sure he gets it right? I think he probably feels that he already got the whole being-born-in-Hawaii thing right.
actually he could just claim he said it under his breath the right way right after the "bad" one...eliminating all questions..no requirement that it be witnessed by anyone or that it be audible.
By that logic someone testifying in court could say "Not" under his breath while taking the oath to testify truthfully and then use this inaudible comment as a defense against perjury charges.
I think it's good the President took the care to retake the oath in its prescribed form, and he didn't have to truckle to conspiracy nuts to do it.
The only variance permitted by the Constitution is that he could have changed it into an affirmation by replacing "swear" with "affirm." Precedent dating back to President Washington shows that he can then add "so help me God." He could maybe even add some other additional form of words (unless the words are 'psych' or 'just kidding'), since it doesn't say he has to stop talking after taking the prescribed oath/affirmation.
Of course, courts ought to conclusively presume that a person duly elected as President has taken the prescribed oath/affirmation before undertaking his duties. That's judicial economy and sound sense. If he didn't do properly it on TV, just presume he did it properly later.
I certainly hope he's as scrupulous about *keeping* the oath as about using the proper form. One can always hope.
By that logic someone testifying in court could say "Not" under his breath while taking the oath to testify truthfully and then use this inaudible comment as a defense against perjury charges.
court oaths are subject to statutory rules qand rulemaking by the courts that often do indeed specify there be a witness such as a court officer or a notary public.
ofcourse the only reason are being 'safe' about the reswearing is becuase of some imagined duty to be true to the text (elephants in the room aplenty of course)..if were being true to the text then there is no requirement the oath be taken before anyone or audibly.
the truth is of course that the doctrine of substantial compliance- (as someone said before) and the doctrine of de minimis non curatum lex applies better to this circumstance
by doing it again and making a big deal-the president may have made a headache for himself as people like those on this thread claim he needs to reissue those orders and redo the appointments and have the senate reconfirm etc etc.
R Nebblesworth:
Probably because he (correctly) guessed that they would be dismissed as kooks and he'd win anyways.
And this instance is somehow different?
While I chuckle at the image of a district court judge ruling Obama's initial acts weren't valid and the ensuing madhouse, I just don't see it happening. Even if the oath of office were left /entirely/ unrendered I have a hard time seeing the courts doing anything about it. Better to punt that one to Congress. Who are now so spineless I doubt they would do anything either.
this seems to me to be just an attempt to get press--which is bizarre given that The Press is willing to give any president and him, in particular, all the (good) press they can handle.
If we're going to be totally anal about it, didn't every president who inserted his name between "I" and "do" also botch the oath? Did any president not insert his name?
Dick King: Wikipedia has it as Robert Livingston, then Chancellor of New York. A judicial position, though obviously not a federal one. I confess my understanding had always been that any person qualified to administer oaths, whether by state or federal authorities, would be sufficient to administer the Presidential oath, but as Anderson points out, the use of a state Justice of the Peace did engender some controversy. I suppose Presidents would be well advised to stick to federal judges generally, if they're disposed to abundant caution.
We're talking about this, not his refusal to produce a birth certificate, right? He may be a foreigner not smart enough to get into Harvard Law School (despite being smart enough to graduate with high honors), but he's no fool.
So does this mean that Obama did not take the Presidential oath on a Bible? Maybe the conspiracy nuts will speculate that was his secret Muslim plan all along.
If this case went to the Supreme Court -- in a crazy hypothetical, of course -- would the Chief Justice have to recuse himself?
I don't think any members of the Supreme Court ever "has to" recuse himself or herself. Recusal is a personal decision, unreviewable by anybody (except perhaps God).
Of course, courts ought to conclusively presume that a person duly elected as President has taken the prescribed oath/affirmation before undertaking his duties. That's judicial economy and sound sense. If he didn't do properly it on TV, just presume he did it properly later.
A conclusive presumption is not a presumption at all, but a rule of law. So you are arguing that the oath prescribed in the Constitution should be dispensed with as altogether unnecessary, although the Constitution says the opposite. Is this a textualist or a living constitution argument?
So the Biden Administration finally comes to a close. Poor Joe; no one ever realized he had been acting president.
Seriously, I am glad the President did this. It demonstrates a concern for details. I suppose it also means that the President will probably also duplicate all orders issued prior to the redo of the oath.
Time for a retrospective on the best and worst moments of the Biden administration. I thought around 12:18-36 featured most of the highlights, it kind of went down hill for an hour or so, but picked up near the end.
George Washington was never President! Or not until his second term, anyway.
Since he couldn't have executed the office of president without a proper oath, his whole first term was void. That includes the appointment of federal judges, which makes his second term nought also.
BTW, Anderson your presence has been requested in the judicial pay thread at Balkinization.
People with standing to challenge Obama's appointments might include any criminal placed under arrest by the FBI under the direction of an unconstitutionally appointed Attorney General.
Mark Filip -- a fellow former Lecturer in Law at The University of Chicago Law School, and Mukasey's #2 -- remains Acting Attorney General until Holder is confirmed.
The Times of London is putting a new angle on this. Apparently on the second-swearing, a Bible could not be found, and they went ahead without one. This might actually develop into a troublesome political narrative...
Speaks to the need for well-prepared and carefully thought-out pettifogging, I think.
Dedicate oathologists might be interested in noting that Roberts made another error that is widely overlooked. As far as I can tell, I'm the only one who has mentioned it. Lucky me.
Lots of news reports (like this one) misstate what Roberts actually said.
And the well-framed portrait behind Obama in the only distributed shot? Benjamin Latrobe, Freemason architect, and a favorite point of reference for Masonic wingnut conspiracy theorists.
Somewhere, Dan Brown is undoubtedly gleefully rubbing his hands together...
This is the second constitutional controversy the Democrats have averted in the last month, the other being the Burris seating. In each case, the Democrats could have prevailed, or at least not lost, in the courts; but they chose not to fight.
Politically, I think the Democrats' calculation in each case was correct.
By contrast, I think the Republicans had tended to allow court cases whose actual effect was highly circumscribed to blossom out of control for no good reason. This is true whether they won or lost - either way, the cases are tremendous distraction: for example, the Schiavo case, the Raich case, the Drew case, the Martha Stewart case, most of the war on terror cases - it would have (in my opinion) been in the best interests of the the Administration had it not brought the cases or had settled them as appropriate. This is even if the Administration believed it would prevail in the courts at the time.
I frankly haven't the foggiest idea why the Administration pushed Raich - what does it care? Win or lose, it hurts them - probably winning hurt them a lot more. Same with Schiavo. Same with the war on terror cases - I understand in all these cases the Administration's legal arguments, I just don't understand why they didn't figure it was easier, simpler, and better PR to settle them all.
Similarly here, the Democrats could have insisted the first Oath was valid; likewise they could have insisted they had the power to bar Burris; and indeed they would likely have prevailed in the courts. But they seem (based on the first two days) to be handling these controversies in a politically savvier way than trying to fight everything to the death in the courts.
A frequent marker of a party falling from power is they're both out of step and out of touch with public sentiment. See, Democrats, 1994. The Bush administration and Congressional Republicans grossly miscalculated where the public was on some of those issues. Schiavo, for example, they thought would be a political winner.
>>>A frequent marker of a party falling from power is they're both out of step and out of touch with public sentiment. See, Democrats, 1994. The Bush administration and Congressional Republicans grossly miscalculated where the public was on some of those issues. Schiavo, for example, they thought would be a political winner.
<<<
Quite so.
But what do think would be the result today if you did a casual public questionnaire asking:
"What is a Shiavo"?
I'll bet most of them would guess it had something to do with an Italian restaurant.
OTOH, when Obama goes after the Second Amendment, it will be one hell of a lot different.
Maybe the take-home lesson here is that sometimes a good attorney tells his client "we think we're right, but we should capitulate anyway so as to avoid the distraction of litigation" - even when the client is the Administration. I guess that's a hard thing for most lawyers to say though.
Every good lawyer warns his clients to take account of both monetary and intangible transaction/litigation costs. These were very good lawyers. I'd be surprised if that's where the problem was.
I did not vote for him. But all of these quibbling posts about the oath is just risible.
However, it does provide an example of why legal beagles are held in contempt by so many people.
No one denied Obama became President at noon on the 20th. The theory that he was not seems entirely to have been a straw man argument that is raised repeatedly by people who try to minimize the importance of the oath by mischaracterizing the position of those who believe Obama did not fulfill Art 2, Sec. 1 on the 20th. The issue was never whether Obama was President on the 20th, the issue was (a) whether he is obligated to take the oath as written, and (b) whether, if he does not, he can execute his office.
That most people do not nowadays take seriously the wording of the oath is not a constitutional issue, it's an educational one. Seventy-five years ago, laymen would have been presumed to have read and to respect the constitution. The great constitutional arguments on the necessary and proper clause and McCulloch, for example, took place in the pages of popular newspapers. Nowadays, by contrast, its text is mainly relegated to classes in law school, and even there, mainly as something to be improved upon by the enlightened application of policy ideals.
For example, to the best of my knowledge I'm the only one who pointed out the rather obvious semantic effects of Obama's change to the oath, (that it severs the link with the Take Care clause and that it diminishes the force of the adverb "faithfully" compared to the verb "execute").
At one time, most people would have been able to quote the Take Care clause, and would have understood how word order is a clue to emphasis; nowadays, most people think the Constitution just means "whatever seems best," and the notion of using one part of the document to elucidate the meaning of another would be utterly foreign to them.
So, yes, textual analysis of the Constitution is disfavored, usually called "quibbling" or "parsing" or the like. But the document was intended to be read carefully, as a textual document and not as a collection of hopeful policy velleities. That most people have not read the document and are not familiar with the history of its interpretation cannot change these facts.
So, if a President can add "so help me god" to the end of the oath, even though that's not in the Constitution, and that's okay, can he add "unless I don't feel like it" to the end?
1.23.2009 8:25pm
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Rick Warren is to officiate.
Well, any judge or notary public--that is, anyone legally qualified to administer oaths. I agree that it's funny, but no doubt the Chief Justice was mortified about his screw-up and happy to make amends.
Recall that Coolidge was sworn in by a Vermont justice of the peace (his dad), and there was an issue whether Pa Coolidge was authorized to administer a federal oath.
Only pettifogging legal beagles would give a damn about this kind of minutia.
As far as the oath, is there any reason signing his name on a piece of paper with the oath typed on it wouldn't be sufficient? People submit written affidavits to courts all the time, and they are treated as if they are given under oath, under penalty of perjury.
Or Obama could've dropped an e-mail to Roberts. Or Roberts could've read it out over the phone, and Obama could've said, "Word." Or Obama could've showed up at the Court, shot Stevens dead, and then said, "Say 'faithfully' again, muthaf--ker!" a la Samuel L. Jackson.
Come on, everyone -- what's YOUR favorite oathtaking scenario?
After all, FDR's "state of emergency" is still in effect ;^)
Campaigns are different from governing. During a campaign, acknowledging the crackpots could be used as campaign fodder against you. Once the election is over you don't have to worry abotu that (for a little while at least).
Maybe because he's not actually trying to mollify the paranoid, but rather to make sure he gets it right? I think he probably feels that he already got the whole being-born-in-Hawaii thing right.
By that logic someone testifying in court could say "Not" under his breath while taking the oath to testify truthfully and then use this inaudible comment as a defense against perjury charges.
The only variance permitted by the Constitution is that he could have changed it into an affirmation by replacing "swear" with "affirm." Precedent dating back to President Washington shows that he can then add "so help me God." He could maybe even add some other additional form of words (unless the words are 'psych' or 'just kidding'), since it doesn't say he has to stop talking after taking the prescribed oath/affirmation.
Of course, courts ought to conclusively presume that a person duly elected as President has taken the prescribed oath/affirmation before undertaking his duties. That's judicial economy and sound sense. If he didn't do properly it on TV, just presume he did it properly later.
I certainly hope he's as scrupulous about *keeping* the oath as about using the proper form. One can always hope.
court oaths are subject to statutory rules qand rulemaking by the courts that often do indeed specify there be a witness such as a court officer or a notary public.
ofcourse the only reason are being 'safe' about the reswearing is becuase of some imagined duty to be true to the text (elephants in the room aplenty of course)..if were being true to the text then there is no requirement the oath be taken before anyone or audibly.
the truth is of course that the doctrine of substantial compliance- (as someone said before) and the doctrine of de minimis non curatum lex applies better to this circumstance
by doing it again and making a big deal-the president may have made a headache for himself as people like those on this thread claim he needs to reissue those orders and redo the appointments and have the senate reconfirm etc etc.
And this instance is somehow different?
While I chuckle at the image of a district court judge ruling Obama's initial acts weren't valid and the ensuing madhouse, I just don't see it happening. Even if the oath of office were left /entirely/ unrendered I have a hard time seeing the courts doing anything about it. Better to punt that one to Congress. Who are now so spineless I doubt they would do anything either.
/I'm kidding
-dk
I don't think any members of the Supreme Court ever "has to" recuse himself or herself. Recusal is a personal decision, unreviewable by anybody (except perhaps God).
A conclusive presumption is not a presumption at all, but a rule of law. So you are arguing that the oath prescribed in the Constitution should be dispensed with as altogether unnecessary, although the Constitution says the opposite. Is this a textualist or a living constitution argument?
Until that "excess of caution" made him take it a second time, it seemed so.
Seriously, I am glad the President did this. It demonstrates a concern for details. I suppose it also means that the President will probably also duplicate all orders issued prior to the redo of the oath.
The good thing about the internet is that there are forums for such pettifogging legal beagles to discuss this kind of minutiae.
Those who care about the truly important aspects of the inauguration, the media has you covered as well. To each his own.
I'm happy for the do-over just because the first one was awkward and embarrassing.
George Washington was never President! Or not until his second term, anyway.
Since he couldn't have executed the office of president without a proper oath, his whole first term was void. That includes the appointment of federal judges, which makes his second term nought also.
BTW, Anderson your presence has been requested in the judicial pay thread at Balkinization.
Speaks to the need for well-prepared and carefully thought-out pettifogging, I think.
Lots of news reports (like this one) misstate what Roberts actually said.
More details here.
I can't find any that point out the error he made prior to saying "solemnly."
PDN Online
And the well-framed portrait behind Obama in the only distributed shot? Benjamin Latrobe, Freemason architect, and a favorite point of reference for Masonic wingnut conspiracy theorists.
Somewhere, Dan Brown is undoubtedly gleefully rubbing his hands together...
Politically, I think the Democrats' calculation in each case was correct.
By contrast, I think the Republicans had tended to allow court cases whose actual effect was highly circumscribed to blossom out of control for no good reason. This is true whether they won or lost - either way, the cases are tremendous distraction: for example, the Schiavo case, the Raich case, the Drew case, the Martha Stewart case, most of the war on terror cases - it would have (in my opinion) been in the best interests of the the Administration had it not brought the cases or had settled them as appropriate. This is even if the Administration believed it would prevail in the courts at the time.
I frankly haven't the foggiest idea why the Administration pushed Raich - what does it care? Win or lose, it hurts them - probably winning hurt them a lot more. Same with Schiavo. Same with the war on terror cases - I understand in all these cases the Administration's legal arguments, I just don't understand why they didn't figure it was easier, simpler, and better PR to settle them all.
Similarly here, the Democrats could have insisted the first Oath was valid; likewise they could have insisted they had the power to bar Burris; and indeed they would likely have prevailed in the courts. But they seem (based on the first two days) to be handling these controversies in a politically savvier way than trying to fight everything to the death in the courts.
>>>The good thing about the internet is that there are forums for such pettifogging legal beagles to discuss this kind of minutiae.
Those who care about the truly important aspects of the inauguration, the media has you covered as well. To each his own.
I'm happy for the do-over just because the first one was awkward and embarrassing.
I'm happy to be confirmed in my belief that when a stone is tossed into a pig pen, the pig that squeals....
...oh, never mind.
Mr. Obama is the President of the United States.
I did not vote for him. But all of these quibbling posts about the oath is just risible.
However, it does provide an example of why legal beagles are held in contempt by so many people.
A frequent marker of a party falling from power is they're both out of step and out of touch with public sentiment. See, Democrats, 1994. The Bush administration and Congressional Republicans grossly miscalculated where the public was on some of those issues. Schiavo, for example, they thought would be a political winner.
<<<
Quite so.
But what do think would be the result today if you did a casual public questionnaire asking:
"What is a Shiavo"?
I'll bet most of them would guess it had something to do with an Italian restaurant.
OTOH, when Obama goes after the Second Amendment, it will be one hell of a lot different.
No one denied Obama became President at noon on the 20th. The theory that he was not seems entirely to have been a straw man argument that is raised repeatedly by people who try to minimize the importance of the oath by mischaracterizing the position of those who believe Obama did not fulfill Art 2, Sec. 1 on the 20th. The issue was never whether Obama was President on the 20th, the issue was (a) whether he is obligated to take the oath as written, and (b) whether, if he does not, he can execute his office.
That most people do not nowadays take seriously the wording of the oath is not a constitutional issue, it's an educational one. Seventy-five years ago, laymen would have been presumed to have read and to respect the constitution. The great constitutional arguments on the necessary and proper clause and McCulloch, for example, took place in the pages of popular newspapers. Nowadays, by contrast, its text is mainly relegated to classes in law school, and even there, mainly as something to be improved upon by the enlightened application of policy ideals.
For example, to the best of my knowledge I'm the only one who pointed out the rather obvious semantic effects of Obama's change to the oath, (that it severs the link with the Take Care clause and that it diminishes the force of the adverb "faithfully" compared to the verb "execute").
At one time, most people would have been able to quote the Take Care clause, and would have understood how word order is a clue to emphasis; nowadays, most people think the Constitution just means "whatever seems best," and the notion of using one part of the document to elucidate the meaning of another would be utterly foreign to them.
So, yes, textual analysis of the Constitution is disfavored, usually called "quibbling" or "parsing" or the like. But the document was intended to be read carefully, as a textual document and not as a collection of hopeful policy velleities. That most people have not read the document and are not familiar with the history of its interpretation cannot change these facts.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.