Commentary: Was Obama’s oath valid?
on Jan 20, 2009 at 9:44 pm
UPDATE Wednesday evening: Perhaps bringing this short-lived story to a close, President Obama on Wednesday took the oath of office again from Chief Justice John G. Roberts, Jr., in the White House’s Map Room. A White House statement explaining is here.
———————–
Commentary
With one word — “faithfully” — misplaced, and with some hesitation, Chief Justice John G. Roberts, Jr., led Barack Obama on Tuesday in taking the constitutional oath required of a new President. But, within minutes, the chattering on the Internet ensued, raising questions about whose fault it was and, more importantly, wondering whether the oath was valid and whether President Obama was, indeed, President.
 This lively conversation very likely will go on, and conspiracy theories probably will abound, at least for a time, but there is no chance the Nation will be without a President because of Tuesday’s mistake on the inaugural stand.
First, no one appears to be in a position to pursue a legal claim that Obama is not the President. Even someone who voted for John McCain could not meet the test for suing.  To be able to sue over this, Article III requires that someone would have to show that they had a personal stake in a correctly recited oath, that their interests were harmed by the mistake, and that a court decision could remedy that harm. The courts these days are fairly stingy about this so-called “standing” requirement — and no judges are stingier about this than conservative jurists who might not be so pleased — ideologically –  with President Obama in the White House.
Second, there is no doubt that Obama has been elected President in the form prescribed by the Constitution. He was formally voted in by the Electoral College on Dec. 15, and the Senate and House, in a joint session on Jan. 8, certified that victory.
Third, even assuming that some judge were willing to bend or relax the rules, and allow a lawsuit against President Obama over the oath, there would be a variety of serious barriers to winning.
** There is a well-established doctrine in constitutional law that Presidents cannot be sued directly in court for their official actions — presumably, including the action of reciting the opening oath. Sometimes, a President’s action are open to challenge, by suing someone else who is subject to legal challenge for carrying out a presidential policy, but it would not be possible to blame anybody for the mistaken oath other than Obama personally — unless it would be the Chief Justice, who also has legal immunity for his officiatl actions.
** By the time any lawsuit could move along against Obama, he would have taken a number of actions — perhaps a great many actions — and, while someone is sure to feel wronged by some of those, they would probably have no luck in tracing their specific “injury” to the mistake on the oath.
** All of those actions of the President, taken in the meantime as a lawsuit unfolded, would have committed his government and the United States to a wide array of obligations. No judge, even one with an exaggerated sense of judicial authority, would be inclined to bring on a constitutional crisis by finding that the President had no power to make any of those commitments.
It is, of course, fashionable these days, among some critics of modern constitutional jurisprudence, to suggest that the Constitution must be “strictly construed,” with no leeway, no “play n the joints” of interpretation. But, since Obama said all of the words prescribed for the oath, even if somewhat out of order, would that be enough to lead a judge to take perhaps the boldest actions a court has ever taken against a sitting President? As one conservative judge has said recently, repeating what others have said before, the Constitution “is not a suicide pact.”
(UPDATE: Some readers have helpfully made two points: first, that Obama also signed a written copy of the constitutional oath after the public swearing-in, and, second, that the Constitution’s Twentieth Amendment can be interpreted to mean that the President actually takes office precisely at noon whether or not the oath has been given, and that the oath is necessary only because the President embarks on Executive duties. The blog appreciates these additions to public understanding of Tuesday’s situation.)
