Bench Memos

NRO’s home for judicial news and analysis.

Messing Up the Oath—Part 1


In a FindLaw essay, Cornell law professor Michael C. Dorf uses Barack Obama’s do-over oath as the occasion to try to draw grand lessons about the supposed deficiencies of textualism.  But it’s Dorf’s essay that is deficient.  Traveling between speaking engagements, I offer the first of two comments on his essay.

Dorf asserts that the “only official acts Obama undertook before the ‘do-over’ oath were to sign two executive orders” and that the (hypothetical) failure of the first oath is therefore almost surely of no real consequence. 

But Obama in fact made a slew of nominations (see here and here) to Cabinet and sub-Cabinet positions on January 20—before the second oath on the evening of January 21. 

If Obama’s oath on Inauguration Day was ineffective (a position, as I’ve said, that I’m highly dubious of), then the Senate’s actions purporting to confirm those nominees were and will be likewise ineffective, and thus so—absent curative second nominations and second confirmations—were and will be Obama’s post-confirmation acts appointing those officials to their offices.  So all actions taken by those Cabinet and sub-Cabinet officials, both before and after the second oath and continuing into the future—including their own appointment of subordinates—would also be null and void.

In my next post (Thursday or later), I’ll address the core of Dorf’s argument and explain why his claim that textualists can’t fairly read the Oath Clause as being satisfied by substantial compliance with its terms is baseless. 

Tags: Whelan


Sign up for free NRO e-mails today:

Subscribe to National Review