an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jack Balkin and Mike Paulsen do not in my opinion get the presidential oath controversy exactly right, just as Barack Obama and Chief Justice Roberts did not initially get the presidential oath exactly right. As I read it, the plain words of the 20th Amendment provided that President Bush's term ended at noon on January 20th and the term of his "successor" then began. It seems to me as plain as day that at noon on January 20th President-elect Barack Obama was Bush's "successor" as that word is used in the 20th Amendment rather than say Speaker of the House Nancy Pelosi. I thus think that President Obama became President by operation of the 20th Amendment at noon even before the first oath-taking was botched. I do think President Obama's first obligation as president was that he "shall" i.e. "must" take the correctly worded oath before entering on the execution of his office. The President failed to live up to that obligation until he retook the oath correctly the next day. He thus technically failed to live up to one of his core obligations as President (through no fault of his own) and could in theory, technically, be impeached for that dereliction of duty. It goes without saying that it would be a gross abuse of the House of Representative's prosecutorial discretion to impeach Obama in this context. Indeed, any Representative who so voted ought not to be re-elected for that reason alone. But, I do not think that the failure to take the oath, properly, meant that Obama was not legally President as of noon on January 20th. After all President Clinton failed to obey federal laws against perjury and obstruction of justice. He thus failed to perform his core constitutional duty that he take care that the laws be faithfully executed. President Clinton’s failure to follow the law when he was the chief law enforcement officer of the government was a gross dereliction of duty, but it did not mean that he was not legally the President at the time. So notwithstanding Jack’s mirth, there is a clear implication of the text here: Barack Obama became the 44th President of the United States at noon on January 20th for a term of exactly four years.
Jack suggests that the presence of a comma in the 20th Amendment separating the clause discussing the ending of the President and Vice President’s terms from the ending of Senator’s and Representative’s terms means that the final clause of the 20th Amendment which provides that “the terms of their successors shall then begin” applies only to Senators and Representatives. I disagree. There is a semicolon separating the phrase “and the terms of their successors shall then begin” from the parts of the sentence that describe when the terms of the President, the Vice President, Senators, and Representatives end. The semicolon means that that the phrase “and the terms of their successors shall then begin” applies to all parts of the sentence that appear before the semicolon. The term of President Bush’s successor (Barack Obama) thus began at noon on January 20th before he and Chief Justice Roberts botched the oath the first time.
Contrary to the claims of some, the precise words of the Presidential Oath Clause do not say that the President’s term does not begin until he takes the oath of office. The oath is thus not our Constitution’s analog to the crowning of a King. The Oath Clause simply mandates that the President must take the oath before entering on the execution of his office. Failure to do that, like failure to perform any high duty of the presidential office, is potentially an impeachable offense within the prosecutorial discretion of the House of Representatives.
I also disagree with Mike Paulsen that reciting the words of the presidential oath with “faithfully” in the wrong place is unimportant. Text and two centuries of practice suggest that Mike is wrong. I think the violation is cured by Obama’s retaking the oath the right way a second time around, and I see nothing in the text that bars retaking the oath as often as the President would like. President Obama was right to retake the oath both because this cured a minor technical failure to live up to his presidential duties and because doing so was costless and puts the entire matter at rest. But, he would still have been the President even had he not retaken the oath. The addition of the words including the President’s name (in this case “Barack Hussein Obama”) and “so help me God” are permissible both because they do not take away any of the words the Constitution mandates and because two centuries of practice starting with George Washington himself have established that the addition of these words is permissible.