Wednesday, January 28, 2009

I Stand Corrected (on a point of no real importance)

Conservative lawyer/pundit Ed Whelan notes on the online version of the National Review that my FindLaw column earlier this week erred in stating that the only official acts of any importance that President Obama took between his first and second oaths were the signing of two executive orders. Not so, Whelan notes. He also officially nominated various Cabinet and sub-Cabinet officials. Thus, if Obama needed to recite the oath correctly to be able to have his Presidential acts count---a point that both Whelan and I doubt but that my column assumes for the sake of argument so as to explore other issues---then these nominees would have to be re-nominated and re-confirmed to exercise power lawfully themselves. Neat!

Apologies from me for not noticing that these nominations were made official on Day 1---although, truth be told, this fact actually makes the main argument in my column more relevant. Because I wrongly assumed that all Obama did was sign the executive orders, I had to manufacture a hypothetical case in which the botched oath might make a difference. It turns out I could have used the real example of the nominees.

In light of the tangential (albeit sloppy---okay, I said I was sorry!) nature of the error, Whelan is a bit harsh in concluding that "Dorf’s essay . . . is deficient." Deficient? Really? No doubt the real deficiency Whelan has in mind will be exposed in his eagerly anticipated Part 2, in which he'll "address the core of Dorf’s argument and explain why his [i.e., my] claim that textualists can’t fairly read the Oath Clause as being satisfied by substantial compliance with its terms is baseless."

"Baseless" rather than merely "mistaken" or "questionable" is a pretty high bar, especially when one considers that I did not exactly say "textualists can't fairly read the Oath Clause as being satisfied by substantial compliance with its terms." I said it would be hard for them to do so. My exact words were: "even if we know that, in practice, Chief Justice Roberts would not deny that President Obama had the power to execute his office before the oath was re-administered, Roberts himself – in light of his textualist sympathies -- would be hard-pressed to explain why." So, for Whelan to show that my argument was wrong, much less baseless, he needs to show that it's not just possible, but easy for textualists to find no problem with substantial compliance.

And to anticipate a bit more: I have no doubt that textualists would actually find substantial compliance in the extremely unlikely event of a contested case about the Oath. Most self-described textualists turn out to be not crazy when deciding cases, and therefore textualism as practiced differs somewhat from the attacks on both objective and subjective purpose that one sees in the academic writings of textualists. But I'll let Whelan---whom I grew to respect if not agree with when we were both law clerks at the SCOTUS 100 years ago---have his shot at me before I elaborate further.

Posted by Mike Dorf