April 25, 2011 – Article II, Section 1, Clause 8 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article II, Section 1, Clause 8

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.”

When a new duke was installed in the old Republic of Venice, he took a prescribed oath of office that included a list of limitations on his power. Just in case his memory conveniently weakened as his fondness for office grew, the oath and its limitations were read to him in a formal ceremony every two months. Remembering the horrified reaction in some quarters in Congress when the new leadership read the Constitution at just the opening of this session, one is inclined to believe the Venetians were on to something.

Although the Constitution requires other officials to take an oath of office, the President’s is the only one expressly prescribed. One question that arose is whether the oath is a precondition to the assumption of office. George Washington took office March 4, 1792, yet did not take the oath until April 30 of that year. Similarly, the practice of the British constitution, with which the Framers were intimately familiar, was that the coronation oath might not be administered until some time after the heir’s succession to the vacant throne. The President assumes his office when the constitutionally-designated day, January 20, arrives. However, before the President can execute the functions of his office, he must take the oath. Under the current practice of inauguration (which increasingly does resemble a coronation) and the demands of office, the matter has ceased to have practical significance.

Of more continuing relevance is the question of the scope of independent power the oath gives the President. Just as the effectiveness of the periodic recitation of the Venetian oath on restraining executive excess depended largely on the confluence of political events and the duke’s personality, the use of the oath as a source of executive power by the President has been similarly shaped. President Lincoln cited his duty to “preserve, protect, and defend” the Constitution as ample authority for his initial steps to combat organized secession, though he sometimes also referred to the three other sources of broad implied executive powers, the “executive power” clause, the commander-in-chief clause, and the clause that requires him to “take care that the laws be faithfully executed.” In a defense of his actions made to Congress in July, 1861, Lincoln declared that he was acting under his oath to “preserve the Constitution” and the Union, when he called forth the militia to suppress the rebellion, proclaimed a blockade of Southern ports (an act of war), directed large increases of the Army and Navy, ordered $2 million (yes, that was a lot of money then) of unappropriated funds paid out of the Treasury, pledged the unprecedented and astronomical sum of $250 million of the government’s credit, and ordered the military detention and suspension of the writ of habeas corpus for those engaged in or “contemplating” “treasonable practices.”

Laying aside the emergency of the Civil War, the oath has been used by Presidents in more pedestrian ways to assert independent authority. The issue has come up in disputes between the Supreme Court and the President, and the Congress and the President. Early in our history, the “departmental theory” of judicial review dominated. That theory held that each branch was the final and independent interpreter of the powers entrusted to it under the Constitution. Jefferson wrote in 1801 that each of the branches of the federal government “must have a right in cases which arise within the line of its proper functions, where, equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment, and uncontrolled by the opinions of any other department.” Chief Justice Marshall in the Marbury Case used the oath he took as providing constitutional legitimacy for judicial review.

Madison echoed Jefferson. So did Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and others. The attorneys representing President Andrew Johnson during his Senate trial in 1868 on impeachment charges relied on the President’s independent constitutional position, validated by his oath of office, to defy the Tenure of Office Act of 1867. Johnson claimed that the act, adopted over his veto, deprived him of his constitutional powers to remove executive department officers by requiring him to obtain Senatorial consent before firing Secretary of War Edwin Stanton.

The issue continues to resonate. The President’s first duty, as so many incumbents have argued, is to the Constitution as the Supreme Law. Moreover, the President is an independent actor in that regard. Hence, the President can veto a bill from Congress if he believes it to be unconstitutional, even if the Congress and an existing Supreme Court precedent point to its constitutionality. Questions of greater constitutional difficulty and shadowiness arise about Presidential signing statements and the President’s refusal to enforce a law that has been duly enacted, the latter of which also implicates the President’s Article II duty of faithful execution of the laws.

Both issues are live political matters. Just as his predecessors did, President Obama has resorted to the very signing statements whose use by George W. Bush he vocally decried. The latest is a statement that he would continue to employ “czars” (presidential policy directors not subject to Senatorial confirmation) despite the fact that the budget he was signing after the deal reached with Congress prohibited funding for 4 such officials (out of 39). The President has claimed that the budget restriction violates his constitutional authority. Such statements are not given legal significance by the courts when interpreting the constitutionality of a statute, in part because they tend to be rather vague and thin on constitutional analysis. But they certainly are a measure of the President’s willingness to claim that his constitutional powers are not subject to Congressional limitation. At the same time, the statute is now the law of the land, and the President’s proper choice should have been to veto the bill, not to refuse to enforce parts, in effect signing a bill into law that was not the same as presented to him.

Not enforcing an already-existing and properly enacted law is the most troubling. For instance, the Obama administration has announced that it will not defend the constitutionality of the federal Defense of Marriage Act (DOMA), because the President believes the law to be unconstitutional. Yet, the law was adopted by a Congress and signed by a President (Bill Clinton) who must have believed the law to be constitutional. Moreover, there is no Supreme Court opinion that the law is unconstitutional, and there has been no great change in social conditions or political composition of the voters. While a President’s oath to support the Constitution gives him some leeway in administering law, and while a predecessor’s acts cannot inflexibly bind a President, in this matter the President’s position is at odds with the actions of Congress and two Presidents, of different parties. There is a tension between the President’s claim that the oath directs his first duty to the Constitution, and the Constitution’s own command that he faithfully enforce the laws.

These issues are not easily resolved. It is clear, however, that the oath is far more than mere formality. History has shown it to be another factor in the Constitution’s separation of powers and blending and overlapping of functions, swirling in the murky vortex where constitutional law and politics lose their distinctness.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

8 replies
  1. yguy
    yguy says:

    Not enforcing an already-existing and properly enacted law is the most troubling. For instance, the Obama administration has announced that it will not defend the constitutionality of the federal Defense of Marriage Act (DOMA), because the President believes the law to be unconstitutional.

    […]

    There is a tension between the President’s claim that the oath directs his first duty to the Constitution, and the Constitution’s own command that he faithfully enforce the laws.

    How does an obligation to enforce the law translate to an obligation to defend it in court? Can he not do the former without doing the latter?

    Reply
  2. Barb Zakszewski
    Barb Zakszewski says:

    What an excellent analysis of the Oath of office.. It is interesting to read the historical context and treatment of past Presidents of the Oath of Office. It seems to me that the Oath is a two-part Oath. The president will execute the bills that Congress has approved, that become Law when the President signs the bill. Part 2 specifically talks about the President and his obligations to preserve, protect and Defend the Constitution. I believe that Professor Knipprath is absolutely right when he says issues are not easily resolved. But in every matter or question, the Constitution MUST be consulted and I do believe that a strict interpretation must be used, along with perhaps the Notes of the Constitutional Convention and other documents to get a clear picture of the intent of the Framers and Founders. Efforts by the current administration or any administration to circumvent the Constitution MUST be thwarted!!! Until this Nation undergoes another revolution and a completely different form of government, the US Constitution MUST be upheld and followed..

    Reply
  3. Joerg Knipprath
    Joerg Knipprath says:

    Thanks for writing, yguy.
    Congress has no way to defend the law that it has enacted (problem of standing, for one). The Attorney General is the chief law enforcement official, though the feds are usually represented by the Solicitor General (#3 in the Justice Dep’t) when litigating cases before the Court. The importance of the Justice Dep’t’s views in defense of a challenged federal statute is so great that the Court may choose not to proceed with a case between, say, two private parties that implicates the constitutionality of a federal law unless the Justice Dep’t intervenes.
    If the President has an obligation to enforce a duly-enacted law, it will hardly do to turn around and say that he need not defend it if it is challenged. He would be conceding that his administration has been enforcing an unconstitutional law against the citizenry. Hardly a satisfying position.
    That said, I was pointing out the internal tension of such a position. I did not say that the President cannot make an argument that he can refuse to defend a law or to enforce a law based on an argument of the President’s interpretation of his constitutional authority. I continue to believe, however, that this is harder to do in the case of a recent law that has been strongly supported by Mr. Obama’s two predecessors and continues to address a politically live topic than a law that has become stale or generally ignored.

    Reply
  4. Lady Liberty
    Lady Liberty says:

    Rerun the tape. The President, for whatever reason, interrupted the Chief Justice when he was reciting the oath for the President to repeat. The oath had to be retaken because of that. When it was retaken, President Obama did not bring back the Lincoln Bible for the swearing-in.

    It should have been asked of President Obama–as so many things should be asked–“why didn’t you retake the oath with your hand on the Bible?”

    Reply
  5. Lady Liberty
    Lady Liberty says:

    Re: Czars and other unelected bodies: The President’s Constitutional right to appoint “ministers and consuls” does not transfer from or usurp any assigned Congressional duty to those unelected appointees for making laws and binding regulations on the citizens of this Republic.

    e.g. EPA, DOE (Energy&ED), DOT, HHS, Homeland Security, TSA etc.etc.etc.

    Reply
  6. Joerg Knipprath
    Joerg Knipprath says:

    Thank you, as well, for writing, Barb and Lady Liberty.
    In my prior response to yguy, I should have said that Congress cannot defend the statute as a party. But they can seek leave to file as an interested intervenor if there is no one else to defend the suit.

    Reply
  7. yguy
    yguy says:

    Congress has no way to defend the law that it has enacted (problem of standing, for one).

    Why wouldn’t Congress have standing if the President refused to act?

    Reply

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