JONATHAN TURLEY

In what must be one of the most embarrassing moments for a Chief Justice, Chief Justice Roberts gave President Barack Obama the oath for a second time on Wednesday in the White House map room. After a day of researching the question, the President’s White House counsel appeared to agree that he had not technically satisfied the oath due to an error by the Chief Justice. As I discussed recently on NPR, Obama is now the third president to taken the oath twice — joining Chester Arthur and Calvin Coolidge.

Obama took the second oath at 7:35 p.m. Wednesday in the White House’s Map Room. When Roberts asked Obama whether he was ready, the President responded, “I am, and we’re going to do it very slowly,” Obama replied.

It was the right thing to do. There is an argument that Obama became president at noon under the 20th Amendment:

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

However, Section 1 of Article II states:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

“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.”

The fact that this oath is in quotations has been read to mean that it must be given precisely — which is why past Chief Justices have read the oath rather than try –as did Roberts– to memorize it. The reason that no improvisation is allowed is that it puts the country on a slippery slope, debating which words can be omitted or moved without changing the meaning.

One way to address the conflict between the two provisions is to viewed the 20th Amendment (as the later ratified provision) as controlling and ever superseding the first provision. However, when two provisions can be read consistently, the courts favor that interpretation. For example, it may indeed be true that the Obama administration did start at noon. However, before Obama began to exercise his authority (like many federal employees) he must take the oath to exercise those duties in a constitutional fashion.

While he is the third president to retake the oath, this is the first time that it was done due to a grammatical malfunction by the jurist administering the oath. Chester Arthur was originally sworn in after the death of President Garfield by New York Supreme Court justice John R. Brady and decided later to redo the oath with a federal judge two days later. Coolidge was first sworn in by his father, a Justice of the Peace and a Vermont notary public at Plymouth Notch, Vermont. He decided that his dad might not meet the standard and took a second oath after arriving in Washington.

For a slow motion on the oath malfunction, here it is:

Roberts: … that I will execute the office of president to the United States faithfully …

Obama: … that I will execute …

Roberts: … the off — faithfully the pres — the office of president of the United States …

Obama (at the same time): … the office of president of the United States faithfully …

After taking the oath, Obama had a great line: “Thank you, sir . . .”the bad news for the [press] pool is there’s 12 more balls.”

Not surprisingly, Roberts stayed quiet on the occasion.

To hear both oaths, click here.

For the full story, click here.