Amid the pomp and protests of the upcoming inauguration, few Americans are likely to listen closely to the words of the presidential oath of office, which are prescribed word-for-word in Article II, Section 1 of the Constitution.
“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.”
It’s unique in that respect. No specific oath is required for anyone else — Supreme Court justices, members of Congress or any other officer of the federal government. They are all lumped into Article VI: They “shall be bound by Oath or Affirmation, to support this Constitution . . .”
(The Bible is optional for all officers of the government.)
The framers left no record of why they thought the presidency worthy of its own special incantation, except that one delegate, James Wilson, said he thought it redundant, given Article VI.
George Washington, who they all knew would be the first president, was sitting right there as president of the Constitutional Convention of 1787 so maybe it was some kind of a tribute, to make him feel special and guarantee that he would take the job.
They tinkered with the language. The president “shall swear fidelity to the union . . . by taking an oath of office,” was an early version. It was replaced by “I will faithfully execute the office,” which was, in turn, augmented by “and will to the best of my judgment and power preserve, protect and defend” the Constitution, and then, finally the version that exists now.
What the framers were thinking at the time is a mystery.
But there’s no mystery about the power presidents have read into their oath — among them, the authority, indeed the obligation, to refuse to enforce laws they consider unconstitutional. Think “signing statements,” for example, in which presidents have unilaterally declared portions of laws unconstitutional and therefore unenforceable.
The basic, simplified rationale is this: If the president is to “preserve” and “protect” the Constitution in the course of “faithfully executing” the office, he or she must make some independent judgments about what the Constitution means and apply those judgments when necessary. To execute laws that the president believes to be unconstitutional would be abandoning that duty, violating the oath of office.
“The Presidential Oath Clause,” wrote constitutional scholar Michael Stokes Paulsen in a widely discussed 2004 Notre Dame Law Review article, “seems to suggest that the President (not the courts) is a kind of special guardian — almost a ‘Lord Protector’ — of the Constitution. Put less grandly, the President is charged with a personal duty of constitutional stewardship.”
So don’t be surprised if you wake up one morning and see a Donald Trump tweet saying, perhaps, “What a dishonest (unconstitutional) law! Sad! Forget it! MAKE AMERICA GREAT AGAIN!”
The possibilities in a Trump administration, dedicated to wholesale change in policies from climate change to health care to immigration to regulation of business, are endless — especially with a potential attorney general like Jeff Sessions, who is staunchly anti-abortion, opposes same-sex marriage and expanding stem cell research, has opposed affirmative action, and voted no on reauthorizing the Violence Against Women Act and on adding sexual orientation to the definition of federal hate crimes.
Citing his oath, Trump could also refuse to defend laws or regulations from prior administrations that have been challenged in court. That’s exactly what the Obama administration did when it refused to continue the government’s defense in court of Section 3 of the Defense of Marriage Act (DOMA), which defined marriage for federal purposes as only between a man and a woman.
As explained in February 2011 by then-Attorney General Eric Holder, the Justice Department “has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional,” a view with which the Supreme Court ultimately agreed in U.S. v. Windsor in June 2013.
It’s likely that Trump’s opponents will be shocked, shocked, by this exercise in power, just as Obama’s critics professed outrage and George W. Bush’s before that.
But unless Trump gets really extreme about it — and appears to be effectively nullifying laws for policy rather than constitutional reasons — Trump’s lawyers will have plenty of precedent and some revered presidents to cite for refusing to enforce laws on constitutional grounds.
Thomas Jefferson believed that the oath not only allowed him to refuse to enforce unconstitutional laws but obligated him to stop enforcing the notorious Sedition Act passed by the previous administration of John Adams.
The law, he wrote Abigail Adams on July 22, 1804, was an “unauthorized act of Congress,” which he was duty-bound to stop. His oath “to protect the constitution” obligated him to cease enforcing the law.
Andrew Jackson agreed when he took issue with a Supreme Court decision upholding congressional authority to charter a national bank, a loathsome institution to Jackson. “Each public officer who takes an oath to support the Constitution,” he wrote on July 10, 1832, “swears that he will support it as he understands it, and not as it is understood by others,” the others, in this case, being the U.S. Supreme Court.
Lincoln is the most cited. As the Civil War began in 1861, he suspended the writ of habeas corpus, defying an order of the chief justice of the United States to release from jail a Maryland planter named John Merryman, a militiaman who had fired on Union troops.
Were he to comply, Lincoln said in an address to Congress on July 4, 1861, he would be violating his “official oath.”
The notion of presidents refusing to execute laws came as a revelation to Americans during the administration of George W. Bush, whose “signing statements” declining to enforce parts of laws on constitutional grounds drew widespread condemnation from, among others, the American Bar Association. The practice, said the ABA, was “contrary to the rule of law and our constitutional system of separation of powers . . .”
Barack Obama, when running for office, was among the most vocal critics of Bush’s signing statements. But as president, he did a few of his own, insisting that he was nonetheless being “consistent with what he campaigned on,” as White House spokesman Josh Earnest said.
Legal scholars differ on the scope of a president’s power to refuse to enforce a law.
So have politicians, except those who manage to make it to the White House, who then tend to come around to the idea, in varying degrees.
Walter Dellinger, a progressive Democrat who was head of the Justice Department’s Office of Legal Counsel, wrote perhaps the most thorough memorandum on the subject in 1994 when asked by the White House to opine on it and concluded that it was “uncontroversial” and “unassailable” that “there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.”
All the way across the spectrum was Republican Sen. Ted Cruz’s 2015 article in the Harvard Journal of Law and Public & Public Policy entitled “The Obama Administration’s Unprecedented Lawlessness.” While bashing Obama’s record of unilateral action on, for example, implementing the Affordable Care Act, Cruz, also acknowledged the legitimacy of using signing statements “to preserve the Constitution’s separation of powers,” — that is, to thwart congressional “encroachment on executive power” as opposed to achieving policy goals.
The only real constraint on this claimed authority is the president’s reasonableness and understanding of the Constitution.
Even Michael Paulsen, who thinks judicial supremacy is a “recurrent myth,” conceded in his Notre Dame law review article that the danger of letting presidents essentially ignore laws “is obvious . . . It is capable of being misused and has been misused at various times in our nation’s history.”
Of course, none of this is what we were taught in school: Congress makes laws, the president carries them out and the Supreme Court says what they mean.
And it’s fair to ask, where in the Constitution does it say the president has this power?
The answer is: nowhere.
But there is also nothing in the Constitution that gives the Supreme Court the power to overturn acts of Congress as unconstitutional. Chief Justice John Marshall came up with judicial review in Marbury v. Madison in 1803, and he too said his judicial oath left him no choice.
So if you’re wondering where presidents got the idea that power flowed from an oath, look no further than John Marshall.
There is an irony to all this. When the framers drafted the Constitution and created the presidency, they were anxious to avoid anything resembling a king. There would be no “anointments” in the newly constituted American republic; just oaths.
But over the centuries, the power of kings and queens has all but disappeared and presidents have become more powerful than ever, thanks in part to the oath.
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