Publication Date

2008

Abstract

This Essay is part of a virtual symposium on the law of presidential transitions which will run in the coming weeks in Colloquy the online supplement of the Northwestern University Law Review This contribution to the symposium focuses on the implications of the Presidential Oath Clause Drawing on Bruce Ackermans language the Essay argues that every presidential transition is in an important sense a constitutional moment That moment is instantiated in a single act the taking of the presidential oath The oath is both an official act and a deeply personal one in which the oathtaker stakes his honor on the preservation protection and defense of the Constitution In doing so the new President necessarily must come to his own understanding of what the Constitution means and what obligations it imposes on him The Presidents duty to consider what the Constitution means and thus what his oath requires of him is indefeasible he cannot simply defer to the constitutional views of the courts of Congress of prior presidents or even of the people who elected him This understanding of the presidential oath as constitutional moment carries with it a host of possible implications They involve competing understandings of the nature of executive power of whether the President is obliged to preserve only the Constitution or the nation itself and of whether the new President is obligated to revisit and either ratify or rescind or even prosecute every action taken by the prior administration In confronting these questions the new President will also consider competing informational influences and policy considerations that may weigh on his choices Ultimately however the Presidential Oath Clause makes clear that the new President is oathbound to independently consider what the Constitution means and what it requires of him and to act accordingly

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