Legal Commentary

A lot of smart, sane people are saying that, purely in an over-abundance of caution, Obama either has or should retake the oath in private. Obama spoke all the words contained in the Clause. The argument seems to be that, because the Oath Clause contains quotation marks, it requires that the President recite the precise words in the precise order. Even if this is just an over-abundance of caution, those recommending the do-over seem to acknowledge, implicitly, there is a colorable argument there that at least could make for genuinely troubling litigation or conflict.

But why is it even is a colorable argument that a do-over could be necessary (even putting standing and political question issues to one side)? The problem with the quotation-marks argument is that Obama (and just about every President before him) added language to the oath, namely "so help me God," which does not appear in the Oath Clause. Can it really be that the President can add extra words if he wishes, so long as the required words are spoken in the correct order? That seems like a very odd reading of the Clause, partially formalist and partially pragmatic. That also leaves open the possibility that Congress could provide by law for an oath that added new language--maybe the "I take this obligation freely, without any mental reservation or purpose of evasion" language that appears in the oath for all other federal officers and employees--so long as the constitutional language remained as it appears in the Constitution.

One way around the "so help me God" add-on language rests on the fact that the President must "swear (or affirm)" and swearing presumes an oath to God. So when a President chooses to swear rather than affirm, as everyone does, "so help me God" is implicit in swearing, so making it express is not really adding new or additional language to what is quoted, which must be recited verbatim.

Maybe. And if the only requirement is that the quoted words be spoken, regardless f order, we could hypothesize the extreme example of a President who utters the words of the oath backwards or in completely random order such that it makes absolutely no grammatical sense--has he truly taken the oath?