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
My friend Akhil Reed Amar, author of a new book on The Unwritten Constitution, weighs in with the following interestingn comments on the status of the presidential oath of office:
* The sealing of the
commission, not the taking of the oath of office, is the decisive moment of
investiture. Taking the oath does not make a person a judge—or a
president, for that matter. Oath-taking is merely the first duty to of someone
who is already legally in office. On this issue, some readers may recall
the flubbed oath-taking at President Obama’s 2009 inauguration and the
president’s decision to retake the oath a few hours later out of an abundance
of caution. [He further analyzes this in a long footnote:]
14 As for the Obama oath re-do in 2009, here are the key points to keep in
mind: A new president-elect receives his official designation—his
commission-equivalent—from Congress as a whole, which is tasked by the
Constitution with the responsibility to count electoral votes, resolve any
disputes (such as arose in 1876-77), and if necessary, choose among the top
electoral-vote-getters if no candidate has enough electoral votes to prevail
(as happened most recently in 1824-25). The president-elect legally
becomes president at the precise stroke of noon on January 20, by dint of the
explicit command of the Twentieth Amendment. The clock and not the oath
does the work. In this explicit text, we see on display the perfect
seamlessness and continuity of the American presidency, which, unlike courts
and Congress, never goes out of session—an obvious carryover from the
seamlessness of the British system. (“The [old] king is dead; long live
the [new] king!”) Textually, it is clear from the words of Article II that the
oath is a duty imposed on the person who is already president, not a magic spell
that makes him president: “Before he [the President] shall enter on the
Execution of his Office, he shall take the following Oath or Affirmation. . . .
. ” In Britain, it was not uncommon for months or even years
to elapse between the start of a monarch’s official reign and the taking of the
official Coronation Oath with all its pomp and ceremony. Prior to the
ratification of the Twentieth Amendment, which contains the word “noon,” a nice
question had arisen about whether the magic moment of presidential transition
was midnight or noon (or some other instant). The original text did not
specify an hour, but early unwritten practice identified midnight as the magic
moment. Hence the storied efforts of John Adams and his staff to sign and
seal judicial commissions late into the evening of his final hours on the job
in an effort to vest his “midnight judges” with the proper authority.
SL's comment: I wonder about the implications of the word "duty" in Amar's argument. Imagine, for example, a President (or any other public official, see Article VI and the requirement to take an oath of loyalty to the Constitution) who simply refuses. Indeed, a state official (think of Rick Perry) might quite explicitly say that he is not willing to subordinate his loyalty to the state constitution to the national Constitution, either on (reasonable) grounds that the Constitution is radically defective (which it is) or less reasonable grounds that he is no longer sure he wants to affirm the very notion of Union that the Constitution instantiates. Would a president be impeachable for wanton refusal to take the constitutionally prescribed oath--I would think the answer is yes, though it's hard to see this as a "high crime and misdemeanor." Would it be proper to refuse to count the vote of a legislator who refused to take the Article VI oath? Would it, incidentally, suffice to explain, when taking the oath, that the "essence" of the Constitution is Article V, which allows unlimited amendment so long as the proper procedures are met, so therefore one could bitterly oppose every other part of the Constitution and call for their transformation through amendment? Or are these, like wedding vows, perhaps, mere incantations that are best left unanalyzed?
SL's comment: I wonder about the implications of the word "duty" in Amar's argument. Imagine, for example, a President (or any other public official, see Article VI and the requirement to take an oath of loyalty to the Constitution) who simply refuses...Would a president be impeachable for wanton refusal to take the constitutionally prescribed oath--I would think the answer is yes, though it's hard to see this as a "high crime and misdemeanor."
A duty to take the oath implies a duty to follow the oath. Thus, if Congress may impeach a President for declining to take the oath, could Congress also impeach a president for declining to follow the oath by violating the Constitution?
A misdemeanor in the impeachment provision is not a misdemeanor crime, but rather a rather broad term for wrongdoing. Failing to follow the Constitution would appear to be such wrongdoing.
Holding onto my hat, but I agree with Mr. DePalma.
Rather obviously, I think, Congress would be within its reasonable rights to consider a president's refusal to follow the rather trivial duty of reciting an oath to be a "shot across the bow" and signal a wider intention by the new president to flout any other duties he/she may decide to neglect. The Congress, presuming it could act (a big question given its dysfunctional state these days -- but we're talking theory here) would certainly have the Constitutional prerogative to remove the chief executive by impeachment and trial in this case.
It does Congress little good to pass legislation, if the executive won't faithfully execute it, no?
There is a British history of this sort of issue. See the story of Charles Bradlaugh who was elected to Parliament in 1880, but refused to take a Christian oath (being an athiest). After two Select Committee reports and a number of votes, he was deprived of his seat (and actually jailed when he refused to leave the chamber). His constituency continued to re-elect him four successive times with him continually denied his seat upon refusing to be bound by a religious oath. It was not until the passage in 1888 of a bill to allow him to affirm (rather than swear) that the issue was finally decided
I think a few points are useful here: that for a member of Congress or of a state legislature, it is up to the house the person is attempting to join to decide the circumstances and requirements of his entry. For an office like that of President where the Constitution itself provides the exact text which must be recited before the occupier may execute the duties of the office, the problem is a bit less intractable
I would think that the President-elect would become President at the strike of noon on January 20, however, he would not be authorized (by the Constitution) to execute the duties and powers of the office until the oath has been recited.