Does the president need to take the oath of office?

January 20, 2009 4:48 PM

A few questions about the oath of office and when the president-elect becomes president...

When exactly does the president-elect become president? Today's New York Times mentioned that due to the schedule running late, Barack Obama actually took the oath of office after noon, and so he was already president when he was sworn in.

This got me thinking. If for some reason the president:
A) Could not take the oath of office due to extreme circumstances, or
B) Chose not to swear on the Bible (let's say he was a Hindu, Muslim or atheist), or
C) Decided to re-word the oath in some way
would that have any bearing on his legitimacy as president? Does the declared winner simply become president at noon on January 20, regardless of whether he takes the oath or not, and whether or not the protocols were observed?

posted by bchaplin to law & government (34 comments total)

The Volokh Conspiracy has a decent roundup on one extreme theory (that Condi Rice was the first black woman president for a few minutes today), and one more reasonable one (the oath is necessary for carrying out executive duties only, not BECOMING President).
posted by JakeWalker at 4:55 PM on January 20 [1 favorite has favorites]

Counterpoint: the CBS commentary on the inauguration claimed that Joe Biden, who had already been sworn in as VP by noon, was President until Obama was sworn in. I'm interested to see whether or not this was actually the case.
posted by PhoBWanKenobi at 4:58 PM on January 20

The timing questions are certainly interesting, but
1) If the JFK assassination isn't an "extreme circumstance" I don't know what is, but LBJ got sworn in promptly.
2) You don't have to swear on the Bible for the oath to be effective, as it isn't specified anywhere in the Constitution.
3) You can't change the words of the Oath, as they are specified in the Constitution, Article II, Section 1, clause 8.
posted by valkyryn at 5:06 PM on January 20

I heard the CBS commentary as well--they made a point of noting that George Bush ceased being president (his presidency "expired" was the term they used) at noon, but Obama was not sworn in until 12:05, so Joe Biden was president for that time.
posted by peanut_mcgillicuty at 5:08 PM on January 20

For (A), I see no reason you couldn't take the oath with a single witness, so I don't see any circumstances too extreme for that. Like valkyryn says, LBJ was sworn in by a handy federal judge. (The only woman to ever swear in a President, if you're looking for trivia.)

For (B), the Constitution just says "take the following Oath or Affirmation". No Bible needed.
posted by smackfu at 5:08 PM on January 20

I heard the CBS commentary as well--they made a point of noting that George Bush ceased being president (his presidency "expired" was the term they used) at noon, but Obama was not sworn in until 12:05, so Joe Biden was president for that time.

Even if this were true (it doesn't appear to be), Biden didn't take his oath until a minute or so after noon either. But it appears Obama was president at noon whether or not he took the oath.
posted by Justinian at 5:15 PM on January 20

"Technically, Obama was already president anyway — the Constitution says the term of the incoming president begins at noon on Jan. 20" makes sense to me...
posted by dawson at 5:15 PM on January 20

Not every President has used a Bible. Johnson didn't use one - he used a Catholic prayer book that someone found on Air Force 1.
posted by deadmessenger at 5:15 PM on January 20 [1 favorite has favorites]

d'oh! It appears I spoke hastily and Biden was sworn in a couple minutes before noon after all.
posted by Justinian at 5:15 PM on January 20

Since the ratification of the Twentieth Amendment, the oath is completely symbolic. The transition happens automatically.

"Section 1: 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."
posted by wfrgms at 5:16 PM on January 20 [7 favorites has favorites]

Taft flubbed/embellished the oath of office when swearing in Hoover, and that didn't keep Hoover from actually becoming president.
posted by zsazsa at 5:16 PM on January 20

Seconding what peanut_mcgillicuty says about Biden being President briefly, though I didn't hear it on CBS. Assuming it's even true, I don't think it's that extreme, as much as a bit of trivia: consider that Cheney has officially "been President" at least once, while Bush was undergoing surgery.

"Chose not to swear on the Bible (let's say he was a Hindu, Muslim or atheist)"

As others said, you don't have to use the Bible. I seem to recall hearing that a few Presidents haven't; not for any religious objections, so much as just not doing it. But I don't recall who.

Trivia: "so help me God" is something that almost all Presidents have tacked onto the end, but that's not actually part of the required verbiage. The show John Adams depicts it as a sort of spontaneous utterance by Washington, distressed at the magnitude of what lay before him.

"Decided to re-word the oath in some way"

valkyryn nails it. It's one of the very few things the Constitution actually gets specific on. I heard an NPR segment the other day about how those words were actually revised again and again, visibly changing from draft to draft, reflecting that they actually have deep meaning.

I guess that doesn't answer the question of whether someone flat-out refused to say it. But as I understand the Constitution, the Oath of office is a requirement, so I suppose we'd have had Biden. And, if both of them failed to take it, we'd have President Pelosi.
posted by fogster at 5:25 PM on January 20

Johnson need not have been sworn in on Air Force One -- upon the death of President Kennedy, Johnson assumed the office.

AIUI, LBJ felt it was important to show the continuity of government. Remember that at that moment, there was no idea if other assassinations would be attempted.

He also may not have realized he did not need to be sworn in, in view of the extraordinary stress of the moment.
posted by jgirl at 5:25 PM on January 20

the Constitution says the term of the incoming president begins at noon on Jan. 20

No it doesn't. It says the term of the outgoing president ends at noon on January 20th. That may strongly imply that the term of the incoming president begins at noon on January 20th, but the Constitution does not directly state so.

I heard the CBS commentary as well--they made a point of noting that George Bush ceased being president (his presidency "expired" was the term they used) at noon, but Obama was not sworn in until 12:05, so Joe Biden was president for that time.

That's absurd. Biden took an oath, but he no more took the Presidential oath than Obama had at that time. If you're going to say Obama wasn't President until he took the Presidential oath, I don't see why you would let Biden be the President despite the fact that he has never taken the Presidential oath.

This much is certain: Bush stopped being President at noon.

This much is almost certain: Obama started being President at noon. The Constitution does not say he has to take the oath before he is President; it says he has to take the oath before he can execute the office. That is, he's President, but without power, until he takes the oath.

The only vaguely reasonable alternative to the "almost certainty" of Obama being President at noon is that we simply had no President from noon until Obama took the oath. "Joe Biden was President" makes no sense whatsoever.

A similar but much longer situation has actually happened in our history: Zachary Taylor refused to be sworn in until the day after the start of his term (because of his religious beliefs and the fact that the start of his term was on a Sunday). There are some people who say he wasn't President for that day, but most say he merely lacked the powers of his office.

If for some reason the president (...) Chose not to swear on the Bible

As the Constitution says, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.".

or Decided to re-word the oath in some way

Well, that's more or less what did happen. Obama didn't necessarily "decide" to re-word it; Chief Justice Roberts fucked it up, Obama paused to give him a chance to correct himself, Roberts started flailing wildly in hopes of randomly hitting the correct phrasing, and Obama wound up going with some iteration of what Roberts said. But he didn't actually say the words as prescribed by the Constitution.

So, the answer to that question, apparently, is what happened, which is (A) crazy right wingers go apoplectic, and (B) sane people don't.

Personally, I think that first thing tomorrow, he should take the oath again, correctly this time, then re-sign any signing statements or whatever that he may have executed today, just to get right wingers to STFU about it. Not that they will STFU about it, but whatever.
posted by Flunkie at 5:42 PM on January 20 [4 favorites has favorites]

(LBJ) also may not have realized he did not need to be sworn in

He became President upon the death of JFK, but the Constitution requires the oath before the President is allowed to execute any powers.
posted by Flunkie at 5:45 PM on January 20

It says the term of the outgoing president ends at noon on January 20th. That may strongly imply that the term of the incoming president begins at noon on January 20th, but the Constitution does not directly state so.

...and the terms of their successors shall then begin.
posted by ROU_Xenophobe at 5:52 PM on January 20

That's question that probably won't be definitively answered without some sort of congressional lawsuit/investigation/etc.
posted by blue_beetle at 6:07 PM on January 20

Also regarding (B):
You don't have to swear, you can also affirm, f'rinstance if you're a Quaker.
posted by MtDewd at 6:12 PM on January 20

That's question that probably won't be definitively answered without some sort of congressional lawsuit/investigation/etc.

I'm not sure what a "congressional lawsuit" is, but it seems like the primary question is pretty definitively answered by the text of the Constitution.
posted by grouse at 6:41 PM on January 20 [1 favorite has favorites]

For (A), I see no reason you couldn't take the oath with a single witness, so I don't see any circumstances too extreme for that.

Actually, I take this back. When Calvin Coolidge was sworn in after Harding's death, it was by his father (who was a notary public). They re-swore him with a judge when they got back to Washington because they weren't sure if it had been valid.
posted by smackfu at 7:01 PM on January 20

As far as C) rewording the oath...

Under Austin/Searle's Speech Act Theory, there are certain phrases, aka Speech Acts, that, actually perform actions when uttering. These types of Speech Acts are called Constatives, and oaths and promises fall into this category (usually). Other examples of constatives: If I say, "I agree," or "I apologize," or "I hereby state...", etc. The things that those words represent become "true" once those words are uttered. But, this only works unless certain criteria are met, called Felicity Conditions (FC's here out). FC's require that the person performing the Speech Act has the right to perform that act (authority), is heard by others (authority is perceived/recognized), follows proper procedures/rituals required for that Act, etc.

A good example of this in action, and not unlike taking an oath, is wedding vows. If the Felicity Conditions are met, but the actual wording gets botched (the bride or groom says "I will" by accident, we can assume that the marriage is still good and valid. It is the intent that matters. Of course, wedding vows are trickier, as we see when we get into the Felicity Conditions regarding authority (who can marry; who recognizes it, etc.)

Another example of "botched wording" in common Speech Acts is saying "I'm sorry" when you really mean "I apologize." However, what makes this work is that "I'm sorry" has become socially conventionalized to mean the constative "I apologize."

So, taking the Oath of Office is a formally conventionalized procedure. The intent to take office is recognized by the state and the people. The persons participating in the Speech Act have the authority to do so. The only thing wrong here is that the FC of performing the ritual perfectly, well, didn't go so perfectly. However, the meaning of what was uttered is exactly the same. And a syntactician could easily argue that the underlying representation of the two sentences ("...faithfully execute..." and "...execute...faithfully") is identical. So I would say, unless there's a specific clause that states that the whole procedure is not recognized/null/void unless both the Chief Justice and the office taker recite their roles verbatim according to the constitution, the conditions are met and we have ourselves a sworn in President.

Caveat: I am a linguist, but I am not fully versed in Constitutional law, oath-taking, etc. It is possible that there is some catch, qualification, etc. that I am not aware of. But I'm always curious, so do share if there's anybody out there that can add to the collective pool of knowledge.
posted by iamkimiam at 7:21 PM on January 20 [9 favorites has favorites]

Flunkie, the 20th Amendment says "The terms of the President and Vice President shall end at noon on the 20th day of January... and the terms of their successors shall then begin." So the Constitution does explicitly state that the president-elect becomes president at noon.
posted by Tin Man at 7:45 PM on January 20 [3 favorites has favorites]

Franklin Pierce did not use the Bible to take his oath, and substituted "affirm" for "swear".
posted by amicamentis at 8:07 PM on January 20

Flunkie, you're living up to your handle:

It says the term of the outgoing president ends at noon on January 20th. That may strongly imply that the term of the incoming president begins at noon on January 20th, but the Constitution does not directly state so.

Read the 20th Amendment: "The terms of the President and Vice President shall end at noon on the 20th day of January ... and the terms of their successors shall then begin."

He became President upon the death of JFK, but the Constitution requires the oath before the President is allowed to execute any powers.

Uh... are you saying that the Constitution allows someone to be president without having presidential authority? That's crazy talk!
posted by wfrgms at 9:11 PM on January 20

B) John Quincy Adams was apparently sworn in on a Constitutional law book. (Which seems to make a hell of a lot more sense than the Bible to me, but there you go.)
posted by Ookseer at 12:57 AM on January 21

Really interesting answers... thanks! I thought Obama might need a "redo", but iamkimian's explanation makes sense to me. And in any case, I don't suppose Condaleeza Rice could be considered to have been president in the short interval after noon, before Obama was sworn in, because she didn't take the oath of office either.
posted by bchaplin at 4:01 AM on January 21

Uh... are you saying that the Constitution allows someone to be president without having presidential authority? That's crazy talk!

Yet, there it is in black and white. Look at it like this- you buy a lottery ticket, and it wins. The lottery people say that there was only one winning ticket sold. Therefore, you ARE the winner. However, before you can get your money, you have to sign the papers. The Constitution states who is to become the president and when, and then further states what they have to do before they can do anything about it.

And in any case, I don't suppose Condaleeza Rice could be considered to have been president in the short interval after noon, before Obama was sworn in, because she didn't take the oath of office either.

If you ignore the part about how the terms end and begin simultaneously, then it's not so clear- the constitution states that President and VP Elects must take the oath, but it does not state that an acting president must. It just says "...shall act as president...". So, to be The President, you have to take the oath. But to be Acting President, it doesn't appear so.
posted by gjc at 4:55 AM on January 21

The NPR coverage supported the "Obama became president at noon without having taken the oath" interpretation. One of the commentators whispered (I believe it was during the music performed by Itzhak Perlman, Yo-Yo Ma et al.) that it was now past noon and Obama was the president.
posted by DevilsAdvocate at 4:55 AM on January 21

wfgrms, yes, I was incorrect about the start of term. I had misread that part as applying to the Senators and such.

But as for this:

Uh... are you saying that the Constitution allows someone to be president without having presidential authority? That's crazy talk!

Yes, I'm saying exactly that. It requires the President to take the oath "before he enter on the Execution of his Office".

In fact, as noted above, my interpretation is exactly how March 4, 1849 (post-Noon) is typically viewed: We had a President, and that President had no right to execute any presidential powers. He had entered office, but could not execute his office.

Of course, we didn't have the 20th Amendment then, but the 20th Amendment doesn't change anything about when the President can execute his office; it merely defines when he enters into office.
posted by Flunkie at 4:57 AM on January 21

Teddy Roosevelt didn't swear on a bible, or a prayer book or anything for that matter, he just took the oath.

Also, it is not required at all that a bible be used for government oaths, you may recall that Keith Ellison was sworn into congress in 2006, and presumably 2008 using Thomas Jefferson's copy of the Koran, and I would assume that Jewish members of congress were similarly appointed.

Now the only people who would object to the oath on religious grounds would be Quakers, as we are not allowed to take oaths at all (it implies that there are two standards of the truth and that when we are not sworn we are not trustworty. There have been two quaker presidents (Nixon and I believe Coolidge or Harding), neither of whom objected to the swearing in, but only one of whom was a practicing Quaker at the time of his inauguration (I will let you guess who, but the hint is that Nixon was read out of his meeting during the Vietnam conflict).
posted by BobbyDigital at 9:26 AM on January 21

Arthur Schlesinger Jr. would appear to agree with Flunkie's last point:

"The oath required by the Constitution is preliminary to the 'execution' of the office, not to the holding of it.

"The distinction between holding the Presidential office and discharging its 'powers and duties' is drawn in Article II, Section 1, two paragraphs before the stipulation of the oath. The taking of the Presidential oath is dramatic and symbolic, but supererogatory."
posted by naju at 12:02 PM on January 21 [1 favorite has favorites]

Another article on this, with interesting comments by a constitutional law prof
posted by rux at 12:49 PM on January 21

The NYT is reporting that they did in fact have a do-over this evening.
posted by saffry at 5:52 PM on January 21

Indeed there was a do-over. I'm strangely relieved.
posted by bchaplin at 4:04 AM on January 22