Posted on 01/21/2009 10:07:34 AM PST by AuH2ORepublican
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.
First one may or may not be true, but, if true, then he can’t be president.
Second one is probably true, but it would not disqualify him from the presidency.
Third one would only incapacitate him from performing the duties of president, not prohibit him from becoming president, and in any event would be easy to fix (by taking the oath again).
I find it hard to believe no other president in history has slipped up repeating the oath. Is this really what we’ve been reduced to?
No the presiding judge reads out the oath and the President-Elect repeats it. Thus IMHO “so help me God” is indeed part of the traditional oath.
However the Constitution differs I’m afraid.
So who’s right?
It doesn't matter that much to me. What matters most to me is that under stress Obama repeated what he knew to be an erroneous oath of office. Instead of doing it right despite what Roberts said Obama made a decision to compromise and say it wrong. It's indicative of his mindset and how he will react under stress.
The oath in the Constitution doesn’t include the person’s name, either. It doesn’t ruin the oath to add the person’s name, nor to add “so help me God” at the end (which every president since Washington has done). All I’m saying is that the Constitution requires presidents to take a particular oath, and flipping around its words is not taking the prescribed oath.
LOL but adding to it is O.K.? You see what a slippery slope and a pretty dumb one this actually is.
Oh look Obama just bailed out x company with our tax dollars....let’s all argue about that oath again.
Way to become really irrelevant.
If that’s the case, then there’s no problem. That’s exactly what I was suggesting that he do.
I don’t think I’m acting like a moonbat, I’m merely saying that he should take the oath again. According to some posters, he already did.
You got it all wrong. I want Obama to retake the oath now (assuming that he hasn’t already done so) precisely so that we don’t have to waste time arguing about it whenever he issues an executive order bailing out Company X with our tax dollars.
Yeah, that'll fly.
Oh, no, wait, it won't, no power ring.
didn’t mean to imply that you were a moonbat... I just don’t think this item is worth any time or outrage. there will be plenty of real issues to argue.
That's a fact!
I note "everybody" is blaming Chief Justice Roberts for "flubbing" the Oath. But then, among other things, Chief Justice Roberts recited the (contentious) "So help me God" part inflected as a question. As in: "So help you God???"
If I were a novelist (which I'm not), and needed a pregnant theme for a Washington pot-boiler, I could have a field-day with this....
One plot line that would need to be considered is that Chief Justice Roberts (the fictional character would need a different name) knew exactly what he was doing. And among other things, rather ironically saved BHO (the fictional character would need a different name) from committing the felonious act of perjury in the process....
Thanks for the excellent, informative post, AuH2ORepublican!
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
corner.nationalreview.com/post/?q=NWNmNDE3YjVhMjVjYWQzNWM5MmM0MjExMDcyYzE0MGM=
Oh your blog is back.
They don’t care about the constitution of course but it is clear. And sure it’s an technicality but it is the law.
As I understand it he was President at noon on the 20th but legally he shouldn’t have been able to exercise his powers.
Technically I guess he’s have to redo all his official acts like Cabinet nominations that he made before taking the oath properly. Surely this will not happen.
Hillary is not Sec of State!
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