Subject: Oaths: Flub redux? | The Economist
From: "Eric Schwerin" <[email-masked]>
To: "Hunter Biden" <[email-masked]>, <[email-masked]>, "Alexander Snyder-Mackler" <[email-masked]>, <[email-masked]>
Date: Fri, 25 Jan 2013 17:55:20 -0500

http://www.economist.com/blogs/johnson/2013/01/oaths?fsrc=scn/fb/wl/bl/flubredux

Flub redux?

'PON my word, what is it with the Obama/Biden administration and oaths?  In 2009, John Roberts, the chief justice of the United States, flubbed his lines in giving Barack Obama the oath of office to repeat. The two later re-did the oath in private, since the oath is specified word-for-word in the constitution. Some conspiracy theorists found themselves enjoying the delicious thought that Mr Obama had never become president.

This time, Mr Roberts and Mr Obama got their oath right. But when Joe Biden took his vice-presidential oath, just before Mr Obama, I noticed two small discrepancies between the oath as given to him, and the oath he pronounced. The oath, as read to him by Sonia Sotomayor, an associate justice on the supreme court:

I, Joseph R. Biden Junior, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Mr Biden:

I, Joseph R. Biden Junior, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; ____ I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter. So help me God.

Note "upon" for "on", and a missing "that" beginning the clause "I will bear true faith."

An oath is a kind of speech act: doing something by saying something. In this case, the "doing" is the public commitment to the constitution and the rest. The president's oath is a constitutional condition for him to become president. So what about the vice-president?  If there are any conspiracy theorists hoping that Mr Biden is no longer vice president, they are on thinner ground than they were in 2009, since the vice-presidential oath isn't in the constitution. But it is enshrined in federal law (5 USC § 3331). So is he vice-president? Johnson is not a constitutional scholar. The law does not state what happens if the oath is not completed. It uses the ambiguous "shall" (a new official "shall take the following oath"). This is usually taken in American law to mean "must". I suppose Mr Biden is still vice-president if we agree not to call him on it.

It's not entirely his fault (though I detected a bit of the gabby Mr Biden who talks before thinking as he jumped on Ms Sotomayor's lines a bit). In his defence, the syntax here is weird. Who says "I am about to enter on the office of vice-president"? Virtually no one since 1940, a Google n-gram search of books shows. "Assumed the office" (the yellow line below) is far more common than either "entered on the office" (blue) or "entered upon the office" (red). 

"To enter on an office" is so unusual that Mr Biden can be forgiven for substituting a similar preposition into this rare bird of a phrase. And it seems that "to enter upon an office" is about as legitimate as "to enter on an office": old-fashioned, but not nonexistent. So congratulations on your second term, Mr Vice-President. Keep speaking freely. A Joe Biden who watched his words too carefully wouldn't be the same.

Eric D. Schwerin
[email-masked]

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