Wednesday, January 21, 2009

I'm A Constitutional Nerd

I love this kind of thing. Even better is this analysis, which, as Professor Volokh points out represents "beautiful theory destroyed by ugly fact."

I will also say that the clearest analysis of what actually happened with the flubbed oath comes from a professor at my own law school, Randy Barnett.

And my girlfriend can vouch for the fact that I immediately jumped on the flawed oath (at no point did Obama actually say what is written in the Constitution, having every time misplaced the word "faithfully") as a constitutional problem. Article II, Section 1 provides that the President take the oath "Before he enter on the Execution of his Office." It would appear to me that, while still President, Barack Obama has no authority to execute that office. And so any action he takes between now and such time as he does the oath properly is challengeable under Article II.

Now, do I think anyone will make an issue out of this? No, of course not. The beauty of a peaceful transfer of power is that we can just sweep it under the rug and pretend it never happened.

You know, like we did with Hillary and the Emoluments Clause.

And, finally, let's all chuckle along with Orin Kerr:
The answer to the question, "How many former editors of the Harvard Law Review does it take to administer the Presidential oath properly?" is "More than two."

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