Oath of Office

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."

Article II, Section 1, Clause 8

The Framers fittingly placed the Oath of Office Clause between preceding clauses that set forth the organization of the executive department and succeeding clauses that specify the contours of the President's executive power. The President takes the oath after he assumes the office but before he executes it.

The clause is one of several that employ the oath concept, but it is the only clause that actually specifies the language of an oath for a constitutional actor. The clause does not specify who shall administer the oath, though it has been the common, but not universal, practice for the Chief Justice to do so. While Article VI's Oaths Clause simply requires the persons specified therein to "be bound by Oath or Affirmation, to support this Constitution," the Presidential Oath Clause requires much more than this general oath of allegiance and fidelity. The clause, in notable part, enjoins the President to swear or affirm that he "will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States."

The Framers undoubtedly drew upon similar provisions in a number of early state constitutions in drafting the clause, but they plainly believed that a special oath for the President was indispensable. At the Constitutional Convention, when George Mason and James Madison moved to add the "preserve, protect and defend" language, only James Wilson objected, on the ground that "the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary." The prospect of George Washington becoming President cannot be discounted. The Framers perhaps desired an oath that would replicate the public values of the man who was presiding over the Convention. More significantly, because the presidency was singular, there were no available internal checks, as there were in the other branches, with their multiple members. A specially phrased internal check was therefore necessary, one that tied the President's duty to "preserve, protect and defend" to his obligations to God.

The location and phrasing of the Oath of Office Clause strongly suggest that it is not empowering, but that it is limiting—the clause limits how the President's "executive power" is to be exercised. One unanswered question is whether the President can even legally execute his powers should he intentionally refuse to take or affirm the oath. The clause shares a tight linkage with Article II's Take Care Clause, which requires that the President "shall take Care that the Laws be faithfully executed." The duty faithfully to execute the Constitution as supreme law might be thought to presuppose a power to interpret what is to be executed: "to say what the law is," to borrow a famous phrase from Chief Justice John Marshall. Indeed, some scholars—and Presidents—have seized upon the clause as the font of the President's power of "executive review"—the President's coordinate power to interpret the Constitution, even against conflicting interpretations by the legislative or judicial departments. The penultimate draft of the clause, referred by the Framers to the Committee of Style and Arrangement and reported by that committee, provides some support for this reading. That draft provided that the President act to the best of his "judgment and power," instead of to the best of his "Ability."

Finally, the "preserve, protect and defend" language of the Oath of Office Clause might be thought to place a special constitutional duty on the President to fight for the nation's survival, whether Congress has declared war or not. So thought President Abraham Lincoln during the Civil War. Similarly, President George W. Bush often declared that his primary duty was to "protect" the people of the United States.

Vasan Kesavan