When Did Barack Obama Officially Become Eligible to Act as President? What the Oath "Do-Over" Reveals About Legal Interpretation

By MICHAEL C. DORF
Monday, Jan. 26, 2009

Through a combination of poor coordination and bad luck, the Inauguration Day administration of the Presidential oath of office by Chief Justice John Roberts resulted in Barack Obama's stating the substance, but not the exact wording, of that oath. To remove any doubt about the result, the Chief Justice and the President conducted a "do-over" the next day.

Meanwhile, however, Obama had been acting as President for over a day. Were his actions during that interval valid? Although the question certainly will not have any immediate practical consequences, answering it may shed considerable light on the meaning of the Constitution--and on the different approaches that Roberts and Obama take towards legal interpretation.

The Significance of the Oath and of the Failure to Get it Right

According to the Twentieth Amendment, the Presidency of George W. Bush ended, and the Presidency of Barack Obama began, at precisely noon on January 20, 2009. The oath was not necessary to make Obama the President.

However, the portion of Article II of the original Constitution that sets forth the oath, and which was not superseded by the Twentieth Amendment, requires that the President take the oath "Before he enter on the Execution of his Office." Thus, it can be argued that the President is not eligible to perform any official acts until after he has taken the oath. And because the Constitution sets out the exact words of the oath, it can be argued further that failure to take the oath correctly renders ineffective any actions taken by the President until the oath is properly taken verbatim.

To be sure, such arguments are almost entirely theoretical. There is no doubt that Obama took the oath correctly on January 21. The only official acts he undertook before the "do-over" oath were to sign two executive orders. In the extremely unlikely event that anyone were deemed to have legal standing to argue that those executive orders are therefore void, President Obama could simply sign them again.

Accordingly, to concoct an example in which the President's failure to take the oath correctly makes a real difference, we must use some imagination. Suppose, therefore, that Congress passes a bill; the next day, the President signs it; and the day after that, Congress adjourns. If the President was not authorized to execute the duties of his office when he signed the bill, because he did not properly take the oath, then the bill did not become a law (because, under the terms of Article I, Section 7, when the President fails to sign or veto a bill within ten days of its enactment, and Congress has adjourned in that interval, the bill dies).

Although it is extraordinarily unlikely that the foregoing scenario would play out, it is at least theoretically possible. Moreover, we can imagine circumstances in which the narrow majority in Congress that enacted the bill in the first place is later unable to muster the votes to re-enact the same bill after the recess has ended and the flawed oath has been discovered. Whether or not a court would actually rule on the matter, in this sort of case we would need criteria for determining what counts as compliance with the terms of the oath.

Parsing the Botched Oath

The oath, as set forth in Article II, states: "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."

Yet on Inauguration Day, here is what the President, as led by the Chief Justice, actually said: "I Barack I Barack Hussein Obama do solemnly swear that I will execute the office of President of the United States faithfully, and will to best of my ability, preserve, protect and defend the Constitution of the United States, so help me God."

As recited, the oath contains three small errors: first, because Obama began speaking before Roberts finished with the initial language, he states "I Barack" twice; second, following the lead of the Chief Justice, Obama moves the word "faithfully" back nine words; and third, the President omits the word "the" before "best." These are small and, it would seem, non-substantive, changes, but to reach even that commonsensical conclusion requires us to wade into fairly deep jurisprudential waters.

Is the Recitation of the Oath's Substance, but Not its Precise Wording, "Close Enough for Government Work"?

Let us begin by assuming, at least for the sake of argument, that a President's complete failure to take the oath would render his official acts--such as signing bills passed by Congress--a legal nullity. That assumption may not be right, but without it there would be no reason to care about the oath at all.

However, if the complete failure to take the oath would render the President's actions invalid, then we need to be able to say what counts as taking the oath. Surely there are some statements purporting to be the oath of office that would fail. A President who stated "Yippee, I'm President and I'm darn sure gonna act like it" could not reasonably be deemed to satisfy the constitutional requirement.

Yet neither is it fair to say that every deviation from the words as they appear in Article II counts as a failure to take the oath. If it did, then all of our recent Presidents would have failed to take the oath because of the longstanding practice of inserting the President's name after the word "I" and before "do solemnly swear." Further, Presidents consistently add the phrase "so help me God" at the end of the oath.

If these insertions and additions do not render the oath invalid--and surely they do not--then that must be because recitation of the oath with the President's name and a plea for Divine assistance counts as substantial compliance. Accordingly, we now need to develop criteria for assessing substantial compliance with the terms of the oath.

The Spirit of the Oath

For most reasonable people, the measure of substantial compliance should be straightforward: Did the President state the substance of the oath, such that his recitation thereof fulfilled the purposes of taking the oath?

The answer for prior Presidents and for Obama is clearly yes. The point is not that a President can insert any words and still have the oath count. If, for example, instead of inserting his name, a President were to insert the words "do not," that would nullify the oath. Similarly, if instead of adding "so help me God," a President were to add "but I don't mean it" to the oath, that too would render it ineffective. In contrast, however, Obama's repetition of his first and middle name, his relocating an adverb, and his dropping of the definite article, had no impact whatsoever on the substance of the oath.

How can we distinguish between, on the one hand, inconsequential additions, omissions, and word re-locations, and, on the other hand, changes that make a difference? One attractive answer would be to inquire into the spirit of the oath.

In other contexts, a person who lies under oath can be prosecuted for perjury. Yet nothing would prevent Congress or state legislatures from criminalizing lying in court or on a tax form or in other contexts, even without an oath. Thus, the requirement of an oath serves mainly to impress upon the oath-taker the importance of telling the truth; it is not necessary to provide a predicate for some further action to be taken by the government.

Likewise, the Presidential oath is meant to solemnify the Inauguration proceedings for the public, and to impress upon the President the seriousness of the obligations he has undertaken. Viewed against this background purpose or spirit, it is easy to see why President Obama's Inauguration Day oath was valid.

The Textualist's Dilemma

Yet not everyone acknowledges that the law can have a spirit or purpose -- or that, even if it did, that spirit or purpose would be relevant to how the law ought to be interpreted. In particular, self-described "textualists" contend that laws--including the Constitution--typically reflect compromises among interest groups seeking to advance multiple, sometimes conflicting purposes, including the purpose of not pursuing the law's chief purpose (if one can be identified) at all costs. In this view, when courts interpret a law or constitutional provision in accordance with its supposed "purpose," they risk substituting their own judgments for the compromise reflected in the text. Textualists thus caution against any purpose-driven departure from the text.

Justice Antonin Scalia is the leading textualist on the U.S. Supreme Court. Although Chief Justice Roberts is somewhat more eclectic in his jurisprudential views, he has exhibited considerable sympathy for textualism.

Justice Scalia likes to distinguish textualism from both literalism and "strict constructionism." Legal texts, he says, should be interpreted "reasonably" in light of the public meaning of their words at the time of their adoption (or in light of legal conventions in the case of terms of art). That view sounds, well, reasonable, until one stops to ask how to go about determining what counts as a reasonable interpretation.

Textualists reject evidence of the subjective purposes of laws (such as legislative history) and they also reject objective purposes attributed to the text, because they tend to view objective purpose as simply an effort to sneak the judge's own values into the text. Thus, if they are performing their task honestly, textualists are inevitably thrown back onto something like literalism.

Taken to its logical extreme, the textualist's philosophy would leave someone like Chief Justice Roberts with no way to distinguish between merely technical deviations from the oath and substantive ones. For the true textualist, any deviation departs from the bargain struck by the framers and ratifiers of the Constitution. Thus, even if we know that, in practice, Chief Justice Roberts would not deny that President Obama had the power to execute his office before the oath was re-administered, Roberts himself – in light of his textualist sympathies -- would be hard-pressed to explain why.

When Textualism Matters

Of course, examining the validity of President Obama's Inauguration Day oath is nothing more than an academic exercise. But textualism has real consequences in the everyday work of the Supreme Court. And nothing so well illustrates its flaws as the Court's 2007 ruling in Bowles v. Russell.

Bowles presented the question whether a habeas corpus appeal was untimely because it was filed two days late, even though it was filed before the deadline contained in a court order to the petitioner's lawyer, and even though the petitioner and his lawyer could not have determined that the judge had miscalculated. The Supreme Court ruled, 5-4, that it had no authority to extend the deadline. The majority opinion of Justice Clarence Thomas was joined by all of the Justices who could plausibly be called textualists, including Chief Justice Roberts.

For the four (non-textualist) dissenters, it was apparent that an exception to the deadline for the unusual circumstances of the case would not undermine the general value of court deadlines. Yet the textualist majority could find no basis on which to distinguish exceptions that were consistent with the purpose of the statute in question from exceptions that would be inconsistent with that purpose. Consequently, and as I explained in a column shortly after the ruling in Bowles, the majority opinion was truly Kafkaesque.

Nor is Bowles different in kind from other textualist opinions. In general, it is a supposed virtue of textualism that it keeps judges' personal values and feelings out of judging. Yet many people believe, as President Obama has argued, that the law is often partly indeterminate, and that a judge's values, and his or her ability to empathize with people from different backgrounds, play an important role in how he or she fleshes out the law.

Chief Justice Roberts famously declared otherwise during his confirmation hearings, averring that a judge's job is like that of a home-plate umpire in baseball: simply to call balls and strikes. Even if we were to accept the metaphor, however, different umpires are notorious for having different strike zones. And we can be certain that the judges and Justices (if any) that President Obama appoints will call a very different game from the one Chief Justice Roberts has called thus far.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.



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