Oath of Office - take two?

Several constitutional lawyers said President Obama should, just to be safe, retake the oath of office that was flubbed by Chief Justice John Roberts.

The 35-word oath is explicitly prescribed in the Constitution, Article II, Section 1, which begins by saying the president "shall" take the oath "before he enter on the execution of his office."

The oath reads: "I do solemnly swear 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."

In giving the oath, Roberts misplaced the word "faithfully," at which point Obama paused quizzically. Roberts then corrected himself, but Obama repeated the words as Roberts initially said them.

A do-over "would take him 30 seconds, he can do it in private, it's not a big deal, and he ought to do it just to be safe," said Boston University constitutional scholar and Supreme Court watcher Jack Beermann. "It's an open question whether he's president until he takes the proper oath."

This is truly a fascinating little tidbit of Americana. The oath, according to law, must be administered word for word. Since Roberts and Obama flubbed it, legally speaking, Obama had not fulfilled the Constitutional requirement to take the oath before assuming the presidency.

But then there's the little matter of the 25th Amendment that made Obama president at 12 noon regardless of whether he had taken the oath or not. The amendment was passed to deal with crisis in a nuclear age with the death of a president and the immediate ascension of the Vice President to the office. The reasoning goes that the office of president can never be vacant, that if the president dies (or if both die) the next Constitutional officer in the line of succession automatically becomes president.

The article notes that both Calvin Coolidge and Chester Arthur took the oath twice. But both men were vice president at the time and Arthur, who was sworn in immediately, decided on a formal swearing in when he got back to Washington.

Coolidge, on the other hand, had his father, a notary public, swear him in upon hearing of the death of Harding. At the time, it was uncertain if a notary could actually swear in a president. To avoid confusion, Silent Cal had the Chief Justice swear him in when he got back to Washington.

In both of those cases, those men were following a tradition set down by John Tyler who ascended to the office of president following the death of William Henry Harrison in 1841. Constitutional scholars argue to this day whether Tyler was required to take the oath at all. (There was also a huge to do about whether Tyler was "Acting President" or actually possessed the office of president). There is nothing in the Constitution that clears up the matter and all vice presidents who have ascended to the presidency have followed Tyler's example "for greater caution." There is also great symbolic meaning to taking the oath which, in time of national emergency as when Kennedy was killed, can be an effective balm for the country.

But this situation is without precedent - flubbing the words of the oath. Is Obama really president? Yes, that much is clear. He was duly elected by the electoral college and the Congress certified it. From 12 noon yesterday, he was the legitimate president in the eyes of the law.

But challenges could still be forthcoming. If I were him, I'd give Roberts a call and invite him for lunch, taking the oath with a couple of witnesses "for greater caution."