Legal Commentary

A Footnote on the Oath

By Professor University of Miami School of Law

I see that President Obama had the Chief Justice re-administer the oath of office (correctly) this time in an ‘abundance of caution’ following the imperfect recitation of the oath the first time (due to mis-prompting by the Chief during the Inaugural).

I don’t think there are in fact four federal judges in the country who would have held that Obama was not in fact the President at all relevant times were the issue to have gone to trial. Even so, I agree that the re-administration of the oath of office was a fairly costless way for Team Obama to pacify the wingnuts and ultra-orthodox strict constructionists who might have been baying at the moon on this issue.

I post now, after it’s (almost) all over only to make two points:

• Those commentators (not naming names, sorry) who said the entire issue could never be decided on the merits due to the lack of probable plaintiffs with standing were in my humble opinion simply wrong. Any bill signed by the purported President would not in fact be law if the person signing it were not the office-holder. Ditto for any official act by anyone nominated by a non-President. There would have been armies of people with standing. Which makes me wonder whether Obama, in a further excess of caution, re-signed any first-day documents (such as the Cabinet nominations) post-re-administration of the Oath. In for a penny, in for a pound, I say.

• Other than the fact that it would have cast an unwelcome and unnecessary cloud on a Presidency that has enough to worry about already, it actually would have been a fun case to watch. Since I believe every judge would have been results-oriented on this one, the process of getting to that result might have produced some interesting anti-formalist doctrine that might have had knock-on effects in other areas.

Full post as published by Discourse.net on January 21, 2009 (boomark / email).