Thursday, January 22, 2009

Obama takes second oath l'humra

by Lurker

[Cross-posted at The Muqata]

In the comments on DovBear's post yesterday about the flubbed oath, I raised the question of whether Obama might have to take the oath a second time. After all, the exact wording of the oath is specified in the Constitution, and Obama (due to Roberts' mess-up) said those words out of sequence. DovBear saw it as doubtful that Obama should have to redo it: "I don't see why we need to stand on ceremony. This isn't religion." But as Tzipporah pointed out, one can reasonably argue that it is: "Political pageantry IS America's secular religion, with the Constitution standing as the holy text." I would tend to concur.

Well apparently, the President's White House counsel sees it this way as well. Yesterday, he paskened that min hastam, Obama was yotzei b'di'avad with the first oath -- but nevertheless, so that there should be no hashash ("out of an abundance of caution"), he still had Obama take the oath a second time l'humra, in order to be yotzei l'khol hadei'ot.
Obama retakes oath of office after Roberts' mistake
The do-over was aimed at dispelling any confusion that might arise from Tuesday's take -- in which "faithfully" was said out of sequence -- and erase any question that Obama is legally the president.
"We believe that the oath of office was administered effectively and that the president was sworn in appropriately yesterday," White House counsel Greg Craig said Wednesday in a written statement.
"But the oath appears in the Constitution itself. And out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time," the statement read.
(The article linked above contains an audio recording of the second oath, which was taken on Wednesday at 7:35 pm EST in the White House Map Room.)

Greg Craig's psak was presumably influenced by the rulings issued by many major poskim over the last two days, that Obama should have to do the oath over again: Constitutional scholar Jack Beermann of Boston University went so far as to say that there is a real hashash that Obama wouldn't actually have the halakha of "President" until he recites the oath using the proper nusah. He acknowledged that one could have a hava amina not to repeat the oath because doing so might cause embarrassment to the Chief Justice -- but concluded that the importance of the mitzva of the oath overrides the kavod of the Chief Justice.

Charles Cooper, former head of the Office of Legal Counsel in the Justice Department, paskened unequivocally that Obama is hayav to retake the oath, and without delay. And Jonathan Turley, professor of Constitutional law at George Washington University, said that although Obama is not actually hayav to retake the oath, he should do so anyway to eliminate the safek.

A few interesting notes about Obama's second oath:

  • Roberts once again phrased "so help me God" as a question.

  • The use of a Bible -- which is only a minhag and not specified as part of the hiyuv in the Constitution -- was dispensed with.

  • The concern I raised yesterday, that a second oath might constitute a problem of a brakha l'vatala, apparently did not figure in Mr. Craig's psak.

Buy DB's book. (I personally recommend it)
Buy the other guy's book. (please)
Buy DB's wife a gift (please)

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