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.


Grace Nearing said...

I had heard that Roberts and Obama repeated the oath prior to the Capitol luncheon, just to make sure. I was switching around between so many channels that I can't recall who said this. Have you heard anybody else mention this?

Grace Nearing said...

Just to follow up, here's a related link on the (possible) retaking of the oath.

AuH2ORepublican said...

Grace, I hope President Obama did retake the oath. It would be ridiculous for him not to do so when it would remove all doubt as to the legality of his presidential acts.

Ted said...

Take the test.

FIRST QUESTION: Who IS the actual and lawful 44th President of the USA?

ANSWER: Joe Biden

Biden was initially the Acting President for at least 5 minutes under either the Constitution’s Article 2 or the Constitution’s 20th Amendment, from 12:00 Noon 1/20/09, having already taken his Oath of Office and before Obama completed his ‘oath’ at approximately 12:05 PM, 1/20/09. Under the 20th Amendment if the President-elect shall have failed to qualify, or alternatively under Article 2 if the President is unable to discharge the powers and duties, at the time fixed for the beginning of the term, being 12:00 Noon 1/20/09, which ability and/or qualification includes that he take the Article 2 oath “before he enter on the execution of his office,” then either the Presidency shall devolve on the Vice President under Article 2 or the Vice President shall act as President under the 20th Amendment. (The importance of the oath in ‘commencing’ an ‘Obama Presidency’ — rather than merely the 1/20/09 Noon time — is confirmed by the re-take of the ‘oath’ by Obama at the White House on 1/21/09 after the first ‘oath’ was NOT administered by Justice Roberts NOR recited by Obama in the words as required under Article 2.)

This is significant because at such time that the Supreme Court finally rules on the merits on Obama’s disqualification as not being an Article 2 “natural born citizen” (clearly he is NOT), Biden’s automatic status (without needing to take a separate Presidential Oath) of being President would be predicated upon four different bases: First, having been Vice President under Article 2; second, having been Vice President-elect under the 20th Amendment; third, having been actual President in the hiatus before Obama took the ‘oath(s)’; and fourth, retroactively deemed President during the full period of the Obama usurpation so that the acts of the Federal Government under the usurpation can be deemed authorized and/or ratified by Biden’s legitimacy.

SECOND QUESTION: Who will be the 45th President?

ANSWER: Hillary Clinton

One must assume that Bill and Hillary Clinton have been aware of all of the above. Biden’s wife recently “let the cat out of the bag” on the Oprah Show that both Biden and Hillary had considered alternatively Veep or Secretary of State, in either case, setting up Hillary to be President on a vote of the Democratic Congress if need be.

THIRD QUESTION: Is Obama an unwitting victim of this troika or a knowing participant?

ANSWER: Yet undetermined.