Thursday, December 27, 2012
More on oaths of office
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:
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.
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