Was Obama the President?

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A lot of people have been making a lot of the fact that Obama didn't say the exact oath required by the Constitution until last night. I've heard several constitutional scholars on NPR saying this was nonsense, because the Constitution is clear that the term of the new President starts at noon on January 20, and it doesn't matter if the oath is said at all. My understanding, given that, was that the oath was constitutionally required but not a condition of the presidency beginning. It was just something Obama needed to do, just as the VP is constitutionally obligated to break tie votes in the Senate, and even if he did it late he did it. But his term starts before the oath in any case.

[Update: See comments.] Then I went and actually read the relevant portions of the Constitution. I'm not sure it's all that clear who was president between noon on Tuesday and last night when he said the oath properly. I'm not saying that he wasn't president, but it's not clear if he was or in what sense he was if he was, and it's not clear if anyone was legally allowed carry out the duties of the President. Here are the relevant stipulations in the Constitution:

1. The previous president's term ends on Jan 20 at noon. There's no indication in that amendment about the next president's term beginning at that time, despite claims by several constitutional scholars I heard on NPR that it does say such a thing. So Bush was clearly no longer President, but that amendment says nothing about who, if anyone, was.

2. Article 2 does specify the oath to be said. It says the new President must say it "Before he enter on the Execution of his Office". It seems pretty clear that Obama couldn't enter on the execution of his office, whatever that means, until he said the oath or affirmation that follows (I believe to accommodate Quakers, it gives the option of swearing the oath or simply affirming it). So he was violating the Constitution if he was executing his office before Wednesday night if the oath he said isn't the same oath the Constitution requires.

3. Article 2 goes on to say: "In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

It's not entirely clear to me if the last clause "until the Disability be removed, or a President shall be elected" applies grammatically only to the bit about someone provided for by law (or in the actual case an amendment providing the line of succession declaring it to be the Speaker of the House) or if it also applies to the first part about the Vice President. I first thought the latter, since otherwise the election of a president doesn't remove the vice president from office when it would remove someone lower in the line of succession. That would be weird, and I can't see how the wording could have intentionally meant that. So that looks like any vacancy or inability of the president to perform duties (such as Obama being constitutionally prohibited from entering the execution of his office) would make the VP President or someone down the line of succession if there is no VP. But it could be the former, if there's a need to fill the gap with no elected officer to step in, and the former case is when an elected VP can take over, and there's no need for an election to fill the gap.

Biden had already been sworn in by noon on Tuesday, so presumably he was VP already at noon. I don't see any argument that he couldn't have been VP just because Obama hasn't sworn the oath, and this would be true even during the short intervening time between noon and an oath normally taken in the proper way just afterward. So on the assumption that an inability to enter into the execution of his office means he was not yet President, I think there's an argument that Biden was at least acting President, then, if Obama was not President. I don't think there's any reason to think Pelosi was, as some have claimed, and it's certainly not possible that it was Bush or Cheney. I think there's even an argument that Biden was acting President if Obama was President but couldn't carry out his duties as President because he hadn't entered the execution of his office. [But this may not be so if he hadn't said the Presidential oath, in which case no one could act as President. He had said the VP oath, but that probably isn't sufficient.]

4. But there's even one more puzzling factor. The article 2 paragraph I quoted does have that bit at the end "until the Disability be removed, or a President shall be elected." The Disability was clearly removed when they did the oath properly last night, so there's no question that Obama is now President in every important sense. But on the assumption that he wasn't President when he didn't get the oath right, there's still the election to account for if the last clause applies to the whole sentence and not just the case of a line of succession below VP. The condition says "or a President shall be elected". A President was elected by that point. What does that mean? Is it an argument that Obama really was President, even if Biden was Acting President?

There are several steps in this are unclear enough to me that I wouldn't be very sure about them, but there's a plausible case for that, unless Biden would have had to say the oath himself intending it to be for the acting presidency, in which case no one was acting as President in the intervening time. The line of succession specifies who takes on the Presidency in the event of a vacancy or inability to perform the duties. But it doesn't say they immediately become President. In fact, Pelosi would have to resign from the House to become Acting President, which she would never do for a temporary lapse because then she couldn't return to her House position as a Representative (although the House could re-elect her as Speaker even if she's not a member of the House, as far as I can tell; they've just never done that). The same would be true of Senator Bird, who is next in line, with his Senate seat, except that he could be reappointed to the Senate by his governor (although I believe he'd lose his seniority because of a gap in service and thus lose his status as President Pro Tempore). There's no condition of resigning from a cabinet position, though, and there's no specification that cabinet positions end at noon on Tuesday. In fact, some departments are now actingly-headed by Bush appointees who didn't resign, since a number Obama's appointees have not yet been confirmed. So presumably Condoleeza Rice, if she'd taken the oath to be Acting President, could have been Acting President given that Obama and Biden hadn't taken the Presidential oath and that Pelosi and Bird hadn't resigned from Congress. There's never any way such a thing would happen when none of the people higher in the line of succession were dead or incapacitated in any way but due to technical legalities, but I think that's the legal possibility.

It's funny how an argument that I thought was crazy after listening to some pretty confident constitutional scholars actually appears to have some merit, but I'm very hesitant to take it as far as many have and say that Obama wasn't President in any sense in that intervening time. I do hope he redoes anything he signed during that time if he wants to make sure they are legal (although some of them I'd probably be happier for them not to be law, so maybe I should be careful what I wish for).

8 Comments

Oh for goodness' sake. You surely don't believe that any of the above actually matters? If it does, then that's proof certain and absolute that Obama presides over a nation with too many lawyers!

I guess I'm not so quick to dismiss the Constitution, since it is binding and the very thing Obama has sworn to uphold, and I do actually care about truth, so yes, it does actually matter. It's not going to affect much from here on out, because Obama did actually say the oath properly, although there is the issue of anything he did in the meantime.

Now I happen not to like legal systems that favor the finding of loopholes like that. The law codes of ancient Israel had the wonderful feature of presenting cases that illustrated principles, principles the judges could then apply to other situations that weren't covered. Our system doesn't work that way. If I had to pick systems upon founding a nation, I'd go with the biblical way. But that's not the system we've got. I do think legal truth is a legitimate kind of truth, and I'm interested in what the actual truth of the matter is on such questions.

Article 2 does seem to require that the president elect take the oath before becoming president, so maybe what the con scholars were saying on NPR is a lousy argument. But it still seems wacky to say he wasn't president because the word "faithfully" was put somewhere else.

For one thing, the meaning seems unchanged. For another - and perhaps this is more important - presidents usually stick their name in there (after the "I") and there's no provision for that in the quote. If we insist on saying that the oath of office has to be said *exactly* as quoted in the constitution, we're stuck with the absurd result that anyone who's ever stuck their name in there (perhaps all of them?) hasn't really been president or has illegally/unconstitutionally wielded presidential power (I assume Obama stuck his name in there when he "retook" the oath). Insisting on the exact recital also seems to introduce some problems with the parenthetical "(or affirm)." No one says that either. Plus, I don't think I know how to pronounce a parenthesis symbol.

Part of me thinks it would actually be pretty cool if we've never really had a president (or if everything our presidents had ever done had been unconstitutional). But I think these worries stem from an implausibly hyper-literalist (for lack of a better term) reading of the constitution.

One previous president was a strict Sabbatarian, and his term started on The Lord's Day. He did not take the Oath of Office until the next day. We survived.

Now some other considerations. His first, maybe only, official act after the first swearing in, was a proclamation of a day of reconciliation. Let's not dispute that one. Goodness gracious.

We still have his birth site to quibble about, last I heard.
And why does anyone think a Senator can become Secretary of State.
I would at least like to see the Supreme Court wave their hands and say, Tut Tut it's all ok my good man.
At least.

The real issue, tho, is that he's been president for several days now and the world is not right yet. At least we did have: "Three days of understanding, moving with one another, even the cops who were with us, do you believe me, yeah!" After all, what's so funny 'bout peace, love and understanding?

The reason the NPR analysis is wrong is because the Constitution doesn't say that the new term starts at noon on the 20th. It says that the previous term ends on the 20th. They said that it says the new term starts on the 20th. Regardless of the issue of the oath and how exactly it needs to be said, that analysis is wrong simply because it gets the facts wrong about what the Constitution says.

A lot of things happen that I think are illegal and unconstitutional, e.g. Congress passing laws on things that aren't strictly about inter-state commerce even if they affect inter-state commerce. In many of these cases, there are good reasons to ignore what's strictly speaking constitutional and legal, because it would cause way too much damage to social order to follow the law and Constitution strictly on such matters. All the current members of the Supreme Court accept this to some degree, although the difference in the degree to which the different justices apply this from Justice Thomas on one end to Justice Stevens on the other end is pretty big.

You don't have to be a literalist to suggest what I'm saying. I don't think we have an obligation to write the powers of as articles of clothing in vest form, even though the Constitution says the powers shall be vested in the Congress.

It's clear that the parenthetical is included as an alternative. The intention is clear, and the meaning is pretty clearly determined by the intention and expected public meaning in this case.

I do think the technical law is usually a matter of fact, though, and the way the U.S. court system works usually does involve paying attention to such fine details of this. It's a little odd that we're as free with the Constitution as we are on this issue given how lawmakers have to bend over backwards to fix laws that they discover to include a loophole or an unwelcome consequence of some precise wording that should have been slightly different.

I think the issue really comes down not to how literal you are but what the identity conditions of that oath are. Is it the same oath if you read the parentheticals instead? I think it is, because that's part of what they intended to count as that oath. Is it the same oath if you move the word 'faithfully' to a different part? Adding your name just indicates that you're emphasizing who is saying the oath, fleshing out what's already there by a parenthetical that may if you want to be technical not count as part of the oath but as an explanatory aside in the middle of the oath. I think you could make an argument that moving an adverb from one part of the sentence to another, thus generating a different sentence expressing the same proposition, should count as the same oath, especially if the oath is the content expressed by the sentences. But I think that's how to make the case, not by saying that it's too literalist to want the oath said exactly. This wouldn't be a dispute about whether you should read everything literally. It's a dispute about the identity conditions of this oath.

Bruce, I didn't say we're not going to survive. This isn't about whether this is going to destroy the country. It's about whether the Constitution he was swearing on was properly followed. I hope there's a correct answer to that even if the answer shouldn't affect how we treat him and his presidency, and I'm curious what that answer is as a matter of mere curiosity. I don't think it follows from someone's doing something unconstitutional that they did something disastrous.

Saying I'd be happier for some of them not to be law doesn't amount to disputing the day of reconciliation.

As for the birth issue, hasn't that been consistently rejected by the court system, even up to the Supreme Court? That means he's legally a natural-born citizen. This was settled well before the inauguration. I'm not aware of any judicial rulings on issues of this sort.

A Senator can't become Secretary of State. That's why she had to resign from the Senate first. But she did. Are people really making an issue of that? I do know of a more serious issue, that members of Congress can't be appointed to an office during the same term when the office was created or whose salary was increased, a measure to prevent corruption, since members could simply be making offices or increasing salaries to benefit themselves. That's pretty clear in the Constitution, and they had to remove the salary increase to meet the intent, if not the letter, of the Constitution (which I'm ok with).

Hi, Jeremy,

I think you're overlooking the amendments: Amendment XX says:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

The last clause seems to handle the situation.

I wasn't overlooking that amendment. I referred to it specifically. I did somehow miss the last clause, though, maybe because I didn't expect a return to the same subject as the first part after a subject change to Congress.

It does make it easier to say that Obama was president in at least some sense as of noon Tuesday, though. The "until ... a President shall be elected" means to that conclusion doesn't seem as secure. I do think there's still an argument (though I'm not sure how strong it is) that Obama wasn't able to act as president during that time period given one view on the identity conditions of the oath, a view that I think might be true.

I think use of the word "literalist" is probably appropriate even if the disagreement is over the identity conditions of the oath. A "hyper-literalist" in my sense would be someone who insists that the oath is the exact utterance quoted there (perhaps allowing that the parenthetical is optional or interchangeable with part of the oath, given the context - that remark of mine was mostly a joke). Someone who thinks small displacements of word order or small asides like stating your name after the "I" are ok so long as they don't affect meaning would think the oath is the proposition expressed (though for obvious reasons, they'd insist that the president-elect express the proposition close enough to the way quoted in the constitution - we wouldn't want people saying the oath in another language, say, because most people should be able to understand what the president says).

Perhaps there could be someone else, who thinks the asides are fine, but not the displacement of a word (even if it doesn't affect meaning). But someone like that would need a principled way of accounting for why the aside is ok and not the minor displacement. I'm doubtful that citing the importance of the technical law does it (why would the technical law permit an aside but not a minor displacement?).

Anyhow, I'm happy to abandon use of the word "literalist" (perhaps I don't have a good enough grip yet on how it tends to be used in this context anyway). I wasn't saying that strong forms of literalism are themselves implausible but that this sort of literalism (if it's permissible to call it that) is implausible because of the absurd consequences I alleged it has (e.g., people who were president would, on this reading, not have been).

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