Article II, Section 1, Clause 8:

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.

Several Presidents have relied on the oath, alone or in conjunction with the Take Care Clause,1 for authority to take actions necessary to “preserve, protect and defend the Constitution.” President Thomas Jefferson contended that the oath obligated him to suspend prosecutions under the Sedition Act, which Jefferson had repeatedly claimed was unconstitutional.2 President Andrew Jackson relied in part on the presidential oath in vetoing a bill rechartering the Second Bank of the United States.3 He advanced the view that the presidential oath, as well as the general oath provision in Article VI,4 grants each branch of government an independent power to interpret the Constitution.5 Partially repudiating the Supreme Court’s decision in McCulloch v. Maryland,6 which upheld the constitutionality of the national bank, President Jackson suggested that “[t]he authority of the Supreme Court must not . . . be permitted to control the Congress or the Executive when acting in their legislative capacities . . . .” 7

President Abraham Lincoln relied on the oath to defend his decision to suspend unilaterally the privilege of the writ of habeas corpus,8 claiming that the presidential oath required the President to disregard “a single law” if doing so would preserve the Union.9 President Lincoln similarly justified his position on emancipation of enslaved persons during the Civil War by invoking the presidential oath:

During President Andrew Johnson’s impeachment trial, his counsel alluded to the theory that the oath might grant the President power, but only in passing.11 President Johnson’s lawyers argued that the oath might allow or obligate the President to disregard an unconstitutional law.12 By contrast, the impeachment managers appeared to take the position that a President would violate their oath by doing so.13 Chief Justice Chase, who presided over the impeachment trial, had no official duty to resolve this question, but appeared to side more closely with the view of the President.14

Although several Presidents have cited the presidential oath as providing a basis for executive action, the Supreme Court has not expressly addressed whether the oath may be relied upon for that purpose.15 In the case Lear Siegler, Inc., Energy Products Division v. Lehman, the Ninth Circuit rejected this notion.16

, . The case involved President Ronald Reagan’s decision to not enforce certain provisions of the Competition in Contracting Act (CICA)17 based on the provisions’ alleged unconstitutionality.18 Lear Siegler, a bidder on a Navy contract, sued the Secretary of the Navy seeking to compel the Navy’s compliance with CICA.19 In support of the Reagan Administration’s decision to decline enforcement, the government argued that the President’s oath and the Take Care Clause together “empower the President . . . to declare a law unconstitutional and suspend its operation.” 20 The Ninth Circuit held that this position was “utterly at odds with the texture and plain language of the Constitution, and with nearly two centuries of judicial precedent,” and therefore the President was without constitutional authority to suspend enforcement of CICA.21 The court concluded that permitting the President to suspend laws would expand the President’s legislative role beyond what the Constitution specifically provides in the Presentment Clause.22 The Ninth Circuit also noted that the President “ha[d] assumed a role reserved for the judicial branch” by engaging in constitutional interpretation.23

Since the Ninth Circuit’s decision in Lear Siegler, the executive branch continued to advance the notion that the oath allows or obligates the President to disregard a law the President deems unconstitutional. An opinion by the Department of Justice Office of Legal Counsel (OLC)24

(declining to follow an Attorney General opinion and noting that such opinions are “entitled to some weight,” but “do not have the force of judicial decisions” ). during George H.W. Bush’s presidency took the position that the President’s oath requires a President to uphold the Constitution when it is in conflict with the laws of Congress.25 OLC observed that Delegate James Wilson, advocating for the Constitution’s ratification at the Pennsylvania convention, had suggested that the President could refuse to carry out laws that violate the Constitution.26 OLC qualified its opinion by stating that the President has authority to disregard unconstitutional laws “at least in the context of legislation that infringes the separation of powers,” citing historic examples.27 As OLC observed, this position “remains controversial,” and “there is little judicial authority” concerning the oath.28 OLC continued to take this position under future Presidents.29

Though the Supreme Court has not addressed the specific issue of the President’s oath as a source of executive power, the Court has issued decisions on the President’s exercise of legislative power beyond what the Presentment Clause permits,30 as well as the President’s interpretive authority in connection with the Take Care Clause.31

Footnotes

1

U.S. Const. art. II, § 3.

2

Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), in 1 The Adams-Jefferson Letters 274, 275–76 (Lester J. Cappon ed., 1959) (suggesting that the “obligations of an oath to protect the constitution, violated by an unauthorized act of Congress,” compelled Jefferson to “arrest [the] execution at every stage” of the Sedition Act).

3

Veto Message (July 10, 1832), in 3 A Compilation of the Messages and Papers of the Presidents 1139 (James D. Richardson ed., 1897) [hereinafter Messages and Papers].

4

U.S. Const. art. VI, cl. 3.

5

Messages and Papers, supra note 3, at 1145 ( “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.” ).

6

17 U.S. (4 Wheat.) 316 (1819).

7

Messages and Papers, supra note 3, at 1145.

8

The writ of habeas corpus, which allows detained individuals to challenge their detention in court, is protected from suspension by the Constitution. U.S. Const. art. I, § 9, cl. 2; see .

9

Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in Abraham Lincoln’s Speeches and Letters, 1832–1865, at 173 (Paul M. Angle ed., 1957) ( “[W]ould not the official oath be broken if the government should be overthrown, when it was believed that disregarding [a] single law would tend to preserve it?” ).

10

Letter from Abraham Lincoln to Albert G. Hodges, editor of the Frankfort, Kentucky ‘Commonwealth’ (Apr. 4, 1864), in Abraham Lincoln’s Speeches and Letters, supra note 9, at 264.

11

Cong. Globe Supp., 40th Cong., 2d Sess. 314 (1868) (suggesting that a President is bound by oath to disregard a law that “upon its very face [is] in flat contradiction to plain express provisions of the Constitution” ).

12

Id.

13

Id. at 270 (statement of Rep. George S. Boutwell, on behalf of the Managers) ( “He must take the law and administer it as he finds it without any inquiry on his part as to the wisdom of the legislation . . . . If in any particular, by implication or construction, he assumes and exercises authority not granted to him by the Constitution or the laws he violates his oath of office . . . .” ).

14

Letter from Chief Justice Chase to Gerrit Smith (Apr. 19, 1868), in J.W. Shuckers, The Life and Public Services of Salmon Portland Chase 578 (1874) ( “How can the President fulfill his oath to preserve, protect, and defend the Constitution, if he has no right to defend it against an act of Congress sincerely believed by him to have been passed in violation of it?” ). For more on Andrew Johnson’s impeachment, see .

15

The Court has at times referred to the oath in passing as support for implied executive powers, such as the power to engage in electronic surveillance. United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 310 (1972) ( “[T]he President of the United States has the fundamental duty . . . to ‘preserve, protect and defend the Constitution of the United States.’ Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means.” ).

16

842 F.2d 1102 (9th Cir. 1988)

,

withdrawn on other grounds,

893 F.2d 205 (9th Cir. 1989)

.

17

Pub. L. No. 98-369, §§ 2701–53, 98 Stat. 1175 (1984).

18

The provisions at issue allow the Comptroller General to determine the length of a stay of a government contract when the contract is challenged.

Lear Siegler, Inc.,

842 F.2d at 1104

. The Office of Management and Budget directed executive branch agencies to disregard these provisions as unconstitutionally delegating an executive power to the legislative branch.

Id. at 1105

; see also

Bowsher v. Synar,

478 U.S. 714 (1986)

(holding that Congress may not vest the Comptroller General with executive functions).

19

Lear Siegler, Inc.,

842 F.2d at 1105

.

20

Id. at 1121

.

21

Id. at 1121–22

.

22

Id. at 1123–24

(citing U.S. Const. art. I, § 7, cl. 2); see also

INS v. Chadha,

462 U.S. 919, (1983)

( “It emerges clearly that the prescription for legislative action Art. I, §§ 1, 7, represents the Framers’ decision that the legislative power of the Federal Government be exercise in accord with a single, finely wrought and exhaustively considered, procedure” );

Clinton v. City of New York,

524 U.S. 417, 439–40 (1998)

(holding that statute allowing President to exercise “line item veto” violated the requirements of the Presentment Clause). See generally , and subsequent essays.

23

Lear Siegler, Inc.,

842 F.2d at 1125

(citing

Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803)

).

24

OLC’s opinions are “controlling” within the executive branch, but do not have the force of law outside the executive branch. See, e.g.,

McElroy v. United States ex rel. Guagliardo,

361 U.S. 281, 285–86 (1960)

(declining to follow an Attorney General opinion and noting that such opinions are “entitled to some weight,” but “do not have the force of judicial decisions” ).

25

Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 46 (1990).

26

Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 46 (1990)Id. at 48 (quoting 2 The Documentary History of the Ratification of the Constitution 450 (Merrill Jensen ed., 1976) (statement of James Wilson, Dec. 1, 1787)).

27

Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 46 (1990)Id. at 49–50.

28

Id. at 46

.

29

E.g.,

Presidential Authority to Decline to Execute Unconstitutional Statutes,

18 Op. O.L.C. 199, 199–201 (1994)

(contending that the presidential oath supports President’s power to not comply with unconstitutional enactments).

30

See generally .

31

See generally . Historians have debated whether historical practice provides a clear indication that the oath was intended to enlarge the President’s power. Compare Edward S. Corwin, The President: Office and Powers, 1787–1957, at 62–63 (1957) (concluding that antecedent oaths from state constitutions, records from the debates at the Convention, and understandings of the English coronation oath support the notion that the oath does not add to the President’s power), with Matthew A. Pauley, I Do Solemnly Swear: The President’s Constitutional Oath 170 (1999) (challenging Corwin’s conclusion).