Oath of Office – Constitution Article 2 §1.8

My failure to post Constitution articles the past couple weeks may be evidence that even I am starting to get bored by this series. But I’m stubborn, and maybe a little OCD, so I’m going to keep on trucking. The blue wave (or was it just a splash?) on November 6 was a sign that people haven’t completely given up on American politics, but it in no way equates to “Mission accomplished.” And what good is studying the first article and a half of the Constitution? You kind of need to understand the whole thing. So I’m picking up where I left off, with Article 2 §1.8, which deals with, um… the oath of office.

Article 2 §1.8

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.”

Swearing In

Huh. I never thought about that. The oath the President takes when he is sworn in comes from the Constitution. With the recent elections, a lot of new representatives will be taking office soon. They too will take an oath of office. Though similar, their oath is not in the Constitution. It is U.S. Code § 3331, which states in a pleasantly gender-neutral way:

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

A Trivial Matter of Timing

The presidential oath of office has generated very little legal inquiry. One of the questions has related to the timing of the oath. To me, the words, “Before he enter on the execution,” pretty clearly mean that the oath should precede starting the job. But in a matrix-glitching moment, the second American Congress reversed it. George Washington was inaugurated for the first time on April 30, 1789. The second Congress retroactively determined his first day on the job to be March 4, so his next inauguration was on March 4, 1793. Fortunately, since then things have been a bit more regular. Since 1937, Inauguration Day has been held on January 20 and the term of office officially starts at 12:00 noon on that date, at the moment of the president’s oath-taking.

Significance

Most people know that an oath is an obligation. But nothing is as it seems in politics, and there have been a few attempts to convince people that the presidential oath of office adds to the powers of the president. The first was Andrew Jackson, perhaps the only American president to compete with 45 for whackness. When he vetoed the renewal of the Bank of the United States, his language suggested that the President has the right to refuse to enforce both statutes and judicial decisions based on his own independent decision that they were unwarranted by the Constitution. Chief Justice Taney, who as a member of Jackson’s Cabinet had drafted the message, later said that wasn’t what he meant (Annotated Constitution p. 485). In one of his sketchier moments, the far more respectable Lincoln also implied the argument when he was justifying his suspension of the writ of habeas corpus without congressional authorization.

Promises Broken

Broken campaign promises are the bread and butter of politics. But broken oaths, at least in theory, have a little more weight. And the presidential oath is really not very restrictive. I mean, it basically says “I’ll do my job and use the Constitution to figure out what that means.” That’s why it’s so important to have a president who understands the Constitution – or you know, has at least read it.

From the New York Times, here is one of the most recent examples of 45’s knowledge of the Constitution:

Mr. Trump told Axios that while he initially believed he needed a constitutional amendment or action by Congress to make the change, the White House Counsel’s Office has advised him otherwise.

“Now they’re saying I can do it just with an executive order,” Mr. Trump said.

At least for once he’s being honest about the fact that he doesn’t know what he’s talking about. And here’s a quick review of the Fourteenth Amendment, which establishes birthright citizenship.