Wednesday, January 21, 2009

Constitutional Scholars: Obama Should Retake Oath

A San Francisco Chronicle story today cites several constitutional scholars as saying President Barack Obama should retake his oath of office because of the misstatement of it by Chief Justice John Roberts. "In giving the oath, Roberts misplaced the word "faithfully," at which point Obama paused quizzically. Roberts then corrected himself, but Obama repeated the words as Roberts initially said them."

This would not be a first according to the story. Both Presidents Calvin Coolidge and Chester Arthur did so under similar circumstances. Ironically, Chester Arthur was probably the first and only other president until Obama to skirt the constitutional requirement that a president be a natural born citizen. Arthur lied about his date of birth because his father had not yet become a U.S. citizen at the time of his birth, a fundamental requirement for being a natural born citizen.

Obama's father was a Kenyan citizen at the time of his birth and all times thereafter. Accordingly, he was born with dual citizenship and fails the natural born citizenship requirement. Obama also later became an Indonesian citizen after he was adopted by his step father, Lolo Soetoro. His name was legally changed to Barry Soetoro. It is unclear if or when his legal name was ever changed back to Barack Hussein Obama. I think the NBC issue is of a little more concern than whether the oath was properly recited word for word, but I'm not a Harvard law graduate like Obama and Roberts so what is my opinion worth. And what is the oath worth if the person reciting it didn't use his actual legal name?

UPDATE: Well, somebody at the White House took the concern seriously. Obama retook the ceremony in the Map Room of the White House:

At 7:35 pm, Roberts administered the oath of office again to Obama in the Map Room. Robert Gibbs said the WH counsel, Greg Craig, believes the oath was fine Tuesday, but one word was out of sequence so they did this out of a "an abundance of caution." "We decided it was so much fun..." Obama joked while sitting on a couch. Obama stood and walked over to make small talk with the pool as Roberts donned his black robe. "Are you ready to take the oath?" Roberts asked. "I am, and we're going to do it very slowly," Obama replied. Oath took 25 seconds. After a flawless recitation, Roberts smiled and said, "Congratulations, again." Obama said, "Thank you, sir." Smattering of applause. "All right." Obama said. "The bad news for the pool is there's 12 more balls."


Ted said...


Who was the 44th President of the USA?


Joe Biden.

He was the Acting President for at least 5 minutes under either the Constitution’s Article 2 or the Constitution’s 20th Amendment, from 12:00 Noon 1/20/09, having already taken his Oath of Office and before Obama completed his ‘oath’ at approximately 12:05 PM, 1/20/09. Under the 20th Amendment if the President-elect shall have failed to qualify, or alternatively under Article 2 if the President is unable to discharge the powers and duties, at the time fixed for the beginning of the term, being 12:00 Noon 1/20/09, which ability and/or qualification includes that he take the Article 2 oath “before he enter on the execution of his office,” then either the Presidency shall devolve on the Vice President under Article 2 or the Vice President shall act as President under the 20th Amendment.

Here’s why this may be significant. If a subsequent Supreme Court ruling disqualifies Obama as not being an Article 2 “natural born citizen”, Biden’s automatic succession (without needing to take a separate Presidential Oath) to the Presidency could be predicated upon either and/or both having been Vice President under Article 2 or, if that be deemed problematic because Obama’s unlawful Presidency is nullified, Vice President-elect under the 20th Amendment.

artfuggins said...

CNN and NCC both reported that Obama became president at 12 noon even without the i dont quite see why the Chief Justice screwing up the oath would make a difference if he was legally already president.

Gary R. Welsh said...

The Supreme Court will never do it, Ted. Once the Court allowed him to take office, it will not revisit the issue except to dismiss any last remaining challenges.

Ted said...

Advance Indiana, as they say, "the jury is still out on that."

We shall see!

Article 2 of the Constitution is pretty cut and dry.

Concerned Taxpayer said...

"CNN and NCC both reported that Obama became president at 12 noon even without the oath..."

And after all...we all know that a news report by CNN is legally binding.

Gary R. Welsh said...

Yes, Ted, but you have to be able to get a case heard first. Not a single court anywhere in this country has agreed to hear the merits of this claim. That is a very sad statement on the state of our judiciary when the citizens are powerless to enforce an important part of their constitution, or at least get a fair hearing on their challenge, but it is where we are today. And both political parties are equally at fault for allowing this to happen.

Wilson46201 said...

Considering that Justice Roberts was a GWBush appointee, why should anybody be astonished that he screwed up such a simple task as administering the oath?

"Heckajob, Robertsie!"

Ted said...

Advance Indiana, where have you been? There are a number of cases RIGHT NOW PENDING at the US Supreme Court (which dovetails with why Supreme Court Justice Roberts appropriately did NOT give the Oath specificed in the Constitution; he gave Obama a different "oath").

Ted said...

And, AdvanceIN, be patient, the Supreme Court has merely denied injunctive relief, probably to keep the peace of the country, but they WILL get to the merits.

Don Sherfick said...

I suppose that in an abundance of caution perhaps there ought to be another swearing in, and then some kind of ratification of any documents or orders that Obama may have issued in the interim. But unless someone can come up with a cogent argument as to why "to faithfully execute" and "to execute faithfully" mean something different, it would seem to be an exercise designed to prevent detractors from filing lawsuits more than anything else. Do you personally think there is really a substantive difference, and that literal following of the oath is mandated by the Constitution?

Gary R. Welsh said...

Don, I believe the oath was viewed as extremely important to the founders. That's why it is required by Article II, which reads in part:

"Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Anonymous said...

Wow. I mean, wow. A couple of words were accidentally recited in the wrong order, and some of you actually think this disqualifies Obama from being President? I was actually pretty shocked to hear Chris Wallace actually say this on national television yesterday. Frankly, if I were his boss, I would have suspended him for a week without pay for saying something that boneheaded on the air.

Here's a hint, guys. You'll rebuild your party's reputation by coming up with some policy proposals and a positive vision for the country that will convince a cross-section of the population (not just southern white evangelicals) to get on board. The fact that this tinfoil conspiracy crap appears to show no signs of ebbing is discouraging.

Covenant60 said...

There is no difference between saying that one will "faithfully execute" and saying that one will "execute faithfully". They each convey the exact same thing, which is what the US Constitution prescribes. Nothing to see here.

Also some Inauguration trivia.... LBJ in 1965 did not raise his right hand until about 5 seconds into the oath.

Roberts should have had a cheat sheet. Although, he probably did it on purpose (on orders from the evil GWB, of course) so that BHO's oath would not be endlessly repeated as part of the days Obamagasm.

I think Chief Roberts (and GWB) did us all a favor. At least normal grounded people were spared SOMETHING.

Gary R. Welsh said...

small-question, You must have missed the part of the post where it noted that two previous presidents, Coolidge and Arthur, retook the oath later after it was botched the first time. It may seem silly, but the oath is specifically prescribed by the constitution. I can't see this issue ever being successfully used to challenge an action of Obama, but precedent tells us to be safe rather than sorry.

Anonymous said...

I happen to agree with Turley's assessment that this a "wardrobe malfunction" on the part of Chief Justice Roberts.

Considering the previous President put people in a prison camp for years on end without even bothering to either classify them as a prisoner of war or formally file any charges against them, kvetching about ONE word being out of place in a 35-word oath is a tempest in a teapot in comparison.

Again, see my comment about how building a positive agenda does more to attract new members to your party than hysterical pseudo-legalistic pronouncments that "he's not really the President".

Remember how much time the Democrats wasted between 2001-2006 screaming about Katherine Harris and hanging chads? See what happened when they changed tactics from sneering to looking forward?

indyernie said...

I just want to know one thing...who woke Wilson up from his coma?
GW's done Wilson, give the guy a break.

peacenegotiator said...

Is anyone aware of the fact that our newly inaugurated President is an illegal alien and that his Hawaii certificate of birth posted on his website and on the website of is a forgery.

That any confirmation by the State of Hawaii as to whether Barack Obama has or has not a valid birth certificate on file without Barack Obama's written authorization is illegal and can not be done. That the Department of Health Director Dr. Chiyome Fukino can not legally say or make any such statements as she did below:

"Therefore, I as Director of Health for the State of Hawai‘i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai‘i State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures,"

Lastly, the State of Hawaii has been very loose about the issuance of Hawaii birth certificates. In the past all one needed to do to obtain a certificate of birth was to have two witnesses testify (need not be under oath or by affidavit) in writing that a person was born in Hawaii to secure a Hawaii birth certificate!

Lester D.K. Chow
P.O. Box 4604
Honolulu, HI 96812

Wilson46201 said...

Office of the Press Secretary

For Immediate Release January 21, 2009

The following is a statement from White House Counsel Greg Craig.

"We believe that the oath of office was administered effectively and that the President was sworn in appropriately yesterday. But the oath appears in the Constitution itself. And out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time."