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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Interpreting the Venezuelan Constitution re Inauguration Requirements
As some of you
may know, one of my many hobbyhorses is the stupidity of our Inauguration Day,
which, fortunately, is inconsequential this time but would be of great
importance had Gov. Romney won last month’s election—and was important in many
previous years, including 2008-2009.So
I was extremely interested in a story in today’s New York Times datelined
Caracas and titled (in print) “Aides Ready to Postpone Swearing-in of Chavez.”It involves the interpretation of Article 231
of the Constitution of the Bolivarian Republic
of Venezuela: “The candidate elected shall take office as
President of the Republic on January 10 of the first year of his constitutional
term, by taking an oath before the National Assembly. If for any supervening
reason, the person elected President of the Republic cannot be sworn in before
the National Assembly, he shall take the oath of office before the Supreme
Tribunal of Justice.”So the question is
whether Hugo Chavez, who is currently in Cuba being treated for cancer and
unable to return in time to take his oath on January 10, will in effect be
forced for forfeit his entitlement to a new term of office.One way of analyzing this is to ask whether
the second sentence allowing the oath “before the Supreme Tribunal of Justice”
tacitly includes the January 10 requirement or whether the failure to include a
date gives great leeway.One can also
ask, of course, why we should care about the oath-taking at all.Is it a necessary “performative utterance,”
without which the person remains in his/her “pre-oath” condition, to take the
most obvious example, as a single person instead of the married person one
becomes by saying “I do”?In any event,
the Times article goes on to set out the various sides of the dispute:
Diosdado Cabello, the head of the National
Assembly, said last week that because the second clause did not contain a date
or indicate a place, the swearing-in could happen at any time.
On Monday, Vice President
Nicolás Maduro also said there was room in the Constitution to delay the
swearing-in. The president had received permission from the National Assembly
to be out of the country indefinitely for his cancer operation, and the
permission could be extended past Jan. 10, said Mr. Maduro, whom Mr. Chávez
said he wanted to succeed him if he could not continue in office. “The
Constitution is very clear,” Mr. Maduro said.
José Vicente Haro, a professor
in constitutional law at Andrés Bello Catholic University, had a different
view. He said government officials were trying to argue that because Mr. Chávez
was re-elected, his old term could simply be extended without a formal
swearing-in. He called that an incorrect interpretation and said that after
Jan. 10 the cabinet ministers appointed by Mr. Chávez in his current term could
no longer hold office.
Mr. Haro, who has served as a
consultant to the political coalition opposed to Mr. Chávez, said, “Without
doubt there is a constitutional crisis, and it is of such gravity that the
legislative power, the executive power and the Supreme Court have had to make
statements trying to clear up the doubts and uncertainty that they themselves
have created because they don’t want to follow the Constitution.”
So what does it mean to say “The Constitution is very clear”? It seems quite
clear to me that January 10 has the same status as January 20 in the Twentieth
Amendment.That is the day the old term
ends and the new term begins.If there’s
no need to take the oath, then nothing rides on whether Chavez is in
Caracas.But if the oath is a condition
precedent to acting as president, then he presumably has to take it on the 10th.But then there’s the escape clause.What might that refer to?Does the “supervening reason” mean (something
like) the National Assembly refuses to meet as a gesture of opposition or that
a terrorist attack has disabled too many members of the Assembly to generate a
quorum, or that, as in Washington, DC, say, that a superstorm has made it
impossible for Congress to gather together and meet?One of the problems with a “fixed-day”
calendar is that it doesn’t account for the possibility of natural disasters
(or terrorist attacks).
There are, presumably, many reasons why one might have some qualms about Hugo Chavez, but is his desire to remain president without taking the oath on January 10 one of them? Is this episode a demonstration of Chavez's "anti-constitutionalism" or, instead, of the stupidity of the Bolivarian Constitution? Consider once more the US analogue. Assume that for some reason Barack Obama were trapped in London on January 19 (whether because of a storm or a terrorist attack). I assume that it would be perfectly proper for him to take his oath of office (assuming it's a constitutional necessity at all, remember the kerfluffle four years ago when the brilliant John Roberts muffed it) before any American official authorized to render oaths, including, say, the US Ambassador to the UK. Or I assume that a judge could be flown from New York or Miami to London to administer the oath. But no rational person would say that because he wasn't in Washington on Inauguration Day, that caused any problems. (Recall, for what it's worth, that Calvin Coolidge took the oath to succeed Warren Harding before his father in Plymouth, Vermont. His father had been a member of the Vermont legislature, I believe, at some point, but the Constitution says absolutely nothing about who is qualified to hear the oath. Perhaps, as a matter of (constitutional fact) it could be heard by a UK national, so long as he/she attested that he/she heard the president say the ritual words required by the Constitution.
This, of course, is much like the question of whether the Speaker or President pro Tem is constitutionally eligible to succeed to the presidency. Until the situation actually presents itself (when, as a practical matter, it is almost certainly too late), it is a question that interests only the purest of pure constitutional theorists. But Venezuela presents us with the "real thing," and it will be interesting to see both what the Venezuelans decide and what the response of people both at home and abroad is to whatever is decided upon.
An article in a newspaper in Venezuela today, there seems to be saying the Colombia president has offered support to the vice president of Venezuela to assure there is another term, whether Chävez personally takes the oath or the vice president does so.
For some reason, I compared the unusual circumstance in Venezuela, where the current incapacity of Chävez is part of a series of hospitilizations which have lasted 1-1/2 years already; with another glimpse of how legal incapacity is managed in law in the US: namely, the US depart6ment of justics's replacement leadership's disagreement with the white house in 2004 regarding legitimacy of a surveillance program whose authorization was expiring. The attorney general still remained in Recovery after surgery, while the white house lawyers tried to obtain a signature from the attorney generaly who had not emerged fully from sedation.
The Venezuelan Constitution also contains a requirement at, if the President-elect cannot take office on January 10th, elections must be held within thirty days. Since the Vice President, Maduro, was named, without any confirmation, by Chavez only AFTER the last elections, Maduro has no democratic mandate whatsoever.
Venezuelans who prefer that their elected officials be actually elected must insist that Maduro not be left to exercise e powers of an office he has no mandate to occupy.
"But no rational person would say that because he wasn't in Washington on Inauguration Day, that caused any problems"
Perhaps I'm missing something, but as the 20th Amendment doesn't mention anything about where or to whom the oath must be taken I don't see how this, or the hypothetical situation described in the sentences preceding it, is problematic in the least.
The Venezuelan situation is an interesting one as it does seem to require the oath be taken before certain people. I wonder, does 'before' have to mean 'in the physical presence of?' Could the oath be taken via phone or video conference (Skype?) 'before' the legislature or tribunal? And I wonder, if this were being adjudicated by Scalia would he insist that before meant actual physical presence? Interesting.
I also want to say how much I enjoy Professor Levinson's perspective. We've all come across some part of the Constitution that seemed to us as unwise, but most experts feel the need to try to conjure up a defense of these provisions. We need someone who can stand up and say 'that's just silly' even about such revered documents. The Founders were fallible folks, it's good to always remember that.
Also worth noting is Article 233, which says the following:
The President of the Republic shall become permanently unavailable to serve by reason of any of the following events: death; resignation; removal from office by decision of the Supreme Tribunal of Justice; permanent physical or mental disability certified by a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly; abandonment of his position, duly declared by the National Assembly; and recall by popular vote.
When an elected President becomes permanently unavailable to serve prior to his inauguration, a new election by universal suffrage and direct ballot shall be held within 30 consecutive days. ...
And then Article 234:
A President of the Republic who becomes temporarily unavailable to serve shall be replaced by the Executive Vice-President for a period of up to 90 days, which may be extended by resolution of the National Assembly for an additional 90 days. ...
All taken together, there's a good argument the list in Art. 233 is exhaustive, and while the National Assembly has the option to term the President's absence for the oath "abandonment of office," that's rather unlikely in this case since the Assembly is safely chavista (due in large part to gerrymandering). Notably, the process or criteria for declaring "abandonment of office" aren't spelled out constitutionally--it takes 3/5 of all deputies to censure a minister or the vice-president, but nothing anywhere about "abandonment."
"“The candidate elected shall take office as President of the Republic on January 10 of the first year of his constitutional term, by taking an oath before the National Assembly."
Seems pretty unambiguous to me: Taking the oath is HOW the candidate takes office. If they don't do it, they haven't taken office.
Yes, some people dismiss oaths as meaningless formalities. This seems to be based on the assumption that they carry no force, because they're only taken by shameless liars who don't feel bound to keep their word.
Hm, based on recent US history, I'd have a hard time arguing with this.
Well it is important and this actually isn’t a bad development. It just ensures the opposition will have the time to regroup for an electoral campaign and that the new election will be held during an acute economic crisis.
I agree with you and this actually isn’t a bad development. It just ensures the opposition will have the time to regroup for an electoral campaign and that the new election will be held during an acute economic crisis.view it