Thursday, January 22, 2009

No, Joe Biden was not our 44th President

In a comment to my post on President Obama's incorrectly recited oath of office, blogger Ted espouses the view that, because President Obama did not take the oath of office at noon Eastern Standard Time on January 20 (his incorrectly worded oath took place at 12:06 p.m. E.S.T.), it created a vacancy in the office of the president and Vice President Joe Biden succeeded to the presidency.

That is a cute argument, similar to the one used by some to promote the mistaken notion that David Rice Atchison was actually our 12th President (see, but it ignores the fact that the presidential oath mandated by Article II, section 1, clause 8 of the Constitution is necessary for the "execution of [the] office" (i.e., for performing presidential acts, such as signing bills into law), not for accession to the office. The 20th Amendment to the Constitution makes clear that the new president’s term begins exactly at noon on January 20, and nowhere in the Constitution does it say that the presidential term does not commence until the president has taken his oath of office.

The view that not having taken the presidential oath creates a vacancy in the presidency also begs the question of how a person would be entitled to take the presidential oath (and afterwards begin to execute the office) if he had not become president beforehand. Had, say, Hillary Clinton taken the presidential oath on January 20, she would not have become president, because Article II does not provide that the oath makes one president, merely that if one has become president pursuant to the Constitution one needs to take the oath in order to carry out presidential acts. In the case of President Obama, he became president exactly at noon on January 20, 2009, as per the 20th Amendment, by virtue of having been elected president by the Electoral College.

So, no, Joe Biden was not our 44th President, not even for the six minutes before President Obama's attempt at taking the oath of office.

President Obama Retakes His Oath of Office

Well, President Obama and Chief Justice Roberts must have thought that there was something to the theory, since Obama took the oath once again (this time reciting it using the language dictated by Article II) before Roberts last night. Check out Byron York's post on The Corner:

Wednesday, January 21, 2009

Obama Took the Oath a Second Time [Byron York]

As for the messed-up oath at the inauguration yesterday, some observers said that right-wing nuts would be hinting darkly that Obama wasn't really president because he had not taken the constitutionally-mandated oath as written. Now, it turns out that reasonable people believed there was a potential problem and Obama did, in fact, take the oath a second time. From White House counsel Greg Craig:

We believe that the oath of office was administered effectively and that the President was sworn in appropriately yesterday. But the oath appears in the Constitution itself. And out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time.

UPDATE: The AP reports that Roberts re-administered the oath to Obama at the White House this evening, in the presence of some reporters but with no press cameras in the room. (There was, apparently, a White House photographer there to record the event.) It all went smoothly.

Meanwhile, in the span of a few minutes, I've gotten a number of emails informing me that Obama only took a second oath to head off criticism from people like…me. "Reasonable people believed that a—holes like you and your ilk would make the oath an issue and out of an abundance of caution, to head off a—holes like you, they re-did it," wrote one correspondent.

Think what you like. But this is the relevant part of the Constitution, Article II, Section 1:

Before he 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."

What is it about "shall take the following oath" that is so unclear? The presidential oath has been administered nearly 60 times in American history. It has been messed up and repeated before.

What was so crazy about doing it this time?

01/21 08:10 PM

Wednesday, January 21, 2009

President Obama’s Oath

Tuesday, a few minutes after noon Eastern Standard Time, the world watched as Barack Obama took the oath of office as President of the United States of America. Since such event, President Obama has formally submitted to the Senate nominations for Cabinet officers and will likely issue several executive orders in the next few days. However, due to what we all saw take place during the swearing-in ceremony, those actions by the President may well be unconstitutional.

Before you continue, please note that this piece is not about President Obama not meeting the constitutional qualifications to become president under the theory, buttressed by comments made by the President’s Kenyan step-grandmother, that he was born in Kenya, not Hawaii. It is true that had President Obama been born outside of the United States he would not have been a U.S. citizen at birth (and thus would not be a natural-born citizen under Article II of the Constitution) because, at the time of his birth, his mother had not resided in the United States for at least five years after the age of 14 (she was 18 years old) as required for passing on her U.S. citizenship to a child born abroad with a non-citizen father. However, there is no factual evidence of President Obama having been born in Kenya, and even if this were proven and he had to leave office, his actions as president prior to such time would be valid, for the same reason that laws passed with the vote of a member of Congress later ruled not to have won his election are not nullified. What I am talking about is the possibility that, irrespective of President Obama’s place of birth, his actions as president may themselves violate the Constitution.

Article II of the Constitution provides that, before a president may “enter on the execution of his office, he shall take the following oath,” and proceeds to supply the precise wording required for the presidential oath. Chief Justice John Roberts, while administering the oath of office to President Obama, misspoke when reciting the part of the oath that states “that I will faithfully execute the office of president of the United States.” President Obama paused, realizing the error, and the Chief Justice quickly rectified himself, but President Obama responded “that I will execute the office of president of the United States faithfully,” misplacing the word “faithfully.” The result was an admittedly minor variation in the prescribed language, but it obviously was not identical to the presidential oath mandated by the Constitution. Rarely does the Constitution require anything as specific as the presidential oath, and, before brushing aside questions as to the legality of the modification as hyper-technical nitpicking, one should consider how often form defeats substance in courts of law.

The 20th Amendment to the Constitution declares that the new president’s term begins at noon on January 20, and taking the oath of office is not a requirement to become president, so it is indisputable that Barack Obama is the President of the United States. However, given that President Obama did not take the exact oath of office specifically required by the Constitution before a president may “enter on the execution of his office,” it follows that he is constitutionally forbidden from carrying out the duties of the presidency and thus may not send Cabinet nominations to the Senate, issue executive orders, or sign or veto laws approved by Congress. Unlike an act carried out by a president that is later found not to be qualified to hold office, an act by a president that has not taken the required oath is null and void. Given that millions of citizens may be affected by a single law or executive order, the issue of standing likely would not be an impediment to questioning the President’s authority to execute his office; if a person that violates a law signed by President Obama claims the illegality of the law’s approval as a defense, the court would be hard pressed to ignore the claim.

The thought of every official act carried out by the president being a nullity is too troubling for words; imagine a U.S. Ambassador to China having his diplomatic immunity stripped because his appointment was an unconstitutional act, or a family having its farm foreclosed because the law that prevented such foreclosure was not legally approved. Fortunately, there is a remarkably swift and easy solution to this problem: President Obama can take the oath of office again (a private oath would suffice), and re-submit all nominations to the Senate. By correcting the mistake he made during his swearing-in ceremony, President Obama can remove all doubt as to the efficacy of his official acts as president. Let us hope that the President does the conservative thing in this instance.