Everything I need to know about presidents I learned from Dr. Seuss.

AuthorLawson, Gary
PositionPresidential Oath

Oaths are out of fashion these days. This is an era in which it is widely considered unreasonable to expect the President of the United States to obey basic principles of law and justice, much less to honor something as abstract as an oath. Perjury -- the violation of a legally binding oath -- is publicly defended as proof of the offender's humanity rather than his criminality. And one should not even mention in polite company something as gauche as honoring an oath of marriage. Those pesky vows of marital fidelity were, after all, just words.

The next President of the United States will have to speak some ,words before he can assume the office of the presidency. Indeed, the precise words to be spoken are inscribed in the text of the Constitution (as they are not for any other office)(1): "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."(2) Of course, the oath clauses of the Constitution have all but disappeared from the modern scene.(3) Nonetheless, there was a time when keeping promises was something important rather than an occasionally useful device for acquiring and retaining power.(4) As anyone who is familiar with the story of a certain faithful elephant can attest, the older view was right. Keeping your word is good.(5) Breaking your word is bad.(6) This is especially true when your word is formalized through a mechanism, such as an oath, that is specifically designed to emphasize the promise with "I really mean it!" Moreover, if a person acquires property by making a promise that he has no intention of honoring, he commits fraud -- in the eyes of reason and justice if not always in the eyes of the law. The Constitution requires anyone who takes the office of the presidency to swear a very specific oath as a condition of receiving the benefits of that office. Taking those benefits (including the substantial salary and pension that goes with the office) while disregarding the oath is fraud by any plausible understanding of the term.

Thus, my advice to the new President is the same advice that I would give to any candidate or officeholder, any witness, or any party to a marriage: Do not take an oath that you are not prepared to keep. The President therefore must have a very clear picture of what the presidential oath of office requires. What does it mean to preserve, protect, and defend the Constitution"? Against what threats must the Constitution be preserved, protected, and defended?

Assuming that the President conscientiously follows his oath and therefore poses no threat himself, there are three principal threats to the Constitution that the President must address: Congress, the federal courts, and the States.(7) Because the President has no unilateral power directly to control state officials, I will discuss only the President's obligations with respect to Congress and the federal courts. In both cases the President's constitutional duty is clear.(8)


    Congress's primary function is to make laws.(9) The Constitution assigns the President four principal responsibilities in connection with this lawmaking function: He must recommend to Congress "such Measures as he shall judge necessary and expedient";(10) he must sign or veto congressional enactments;(11) he must employ "[t]he executive Power"(12) to carry laws into effect;(13) and he must nominate or appoint officers to aid him in these tasks.(14) The President has other responsibilities as well, such as the power to convene or adjourn Congress on occasion(15) and the duty to commission officers,(16) but the initial four are the most important contexts in which the President faces constitutional issues when dealing with Congress.

    The President's responsibilities under the Recommendation Clause are clear: recommend to Congress the enactment of measures that are constitutional, and recommend the repeal of existing laws that are unconstitutional. That much is beyond cavil. The only question is how the President is to assess the constitutionality of proposed and existing laws. To what extent can or must the President defer to the constitutional views of others?

    It is helpful to consider this question in the context of a different but related presidential function: the responsibility to approve or veto congressional enactments. If he is presented with a bill that he deems unconstitutional, the President has an obligation, pursuant to his oath, to veto that bill.(17) Because the Constitution does not provide for a line-item veto, the President must veto an entire measure if the measure contains an unconstitutional provision, no matter how much the President may value the bill's constitutionally permissible portions. The President, however, does not work off a blank slate. Congress's decision to send the bill to the President for signature is an implicit assertion that, in Congress's judgment, the measure is constitutional. In some rare cases, Congress will have expressly considered and addressed questions of constitutionality. May or must the President defer to the constitutional judgment of Congress?

    A full answer requires careful consideration of the different meanings of the term "deference." Deference, in the sense of giving weight to another's judgment, runs along a continuum. At one extreme lies complete deference, in which one accepts someone else's determination as conclusive. At the other extreme is de novo consideration, in which the views of others are either ignored or given no significance.(18) In between is a range of shades, from "respectful consideration" to "considerable weight" to "near-conclusive presumption." Different standards of review, which govern decisions when a legal actor must decide a question that a prior actor has already addressed, correspond to different points on this range.(19) Accordingly, in any discussion of deference, one must always ask, "How much deference do you mean?"

    One must also...

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