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.

The Constitution provides no standards for determining whether a President has violated their oath. The fact that other branches interpret the Constitution, and may do do inconsistently with the President, creates difficulties in determining whether the oath has been violated. Just as some Presidents have suggested that the oath may require them to disregard laws when doing so is necessary to “preserve, protect and defend” the Constitution,1 some lawmakers have argued that the President’s oath requires them to execute all laws, regardless of whether the President believes them to be constitutional.2

The Supreme Court has not addressed these competing views, and the oath and its surrounding text do not suggest that questions about violations of the oath were intended for judicial resolution.3 The Court has held that the President is generally immune from civil or criminal liability for official actions taken while in office, which may impede judicial resolution of questions relating to a President’s violation of their oath arising during the President’s tenure.4 The Constitution’s justiciability requirements are another potential obstacle to resolution in federal court.5

Impeachment provides a vehicle by which Congress may adjudicate a President’s alleged violation of their oath.6 Articles of impeachment against Andrew Johnson charged the President with being “unmindful of the high duties of his office and of his oath of office.” 7 Draft articles of impeachment to be used against President Richard Nixon alleged that President Nixon violated his oath, though he resigned before these articles were adopted.8 Articles of impeachment adopted in the impeachment of President Bill Clinton charged the President with violating his constitutional oath,9 as did articles of impeachment adopted in both impeachments of President Donald Trump.10

The political process provides another check on the President’s violation of their oath. James Madison and Alexander Hamilton suggested in various contexts that political accountability might help ensure the President’s fidelity to their office.11 In his second inaugural speech, George Washington observed that violating his oath would invite “the upbraidings of all who are now witnesses of the present solemn ceremony.” 12

Footnotes

1

See 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” ).

2

See 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 . . . .” ).

3

But see Cassius VI, Mass. Gazette (Dec. 21, 1787), reprinted in 5 The Documentary History of the Ratification of the Constitution 500 (John P. Kaminski et al. eds., 2009) (essay by James Sullivan stating that “if [the President] should presume to deviate from [his oath] he would be immediately arrested in his career and summoned to answer for his conduct before a federal court” ).

4

See .

5

See generally , and subsequent essays.

6

U.S. Const. art. II, § 4; cf. The Federalist No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ( “The subjects of [impeachment] are those offenses which proceed from . . . the abuse or violation of some public trust.” ); Cong. Globe Supp., 40th Cong., 2d Sess. 29 (1868) (opening argument of Rep. Butler, on behalf of the Managers) (defining impeachable offenses as including “a violation of the Constitution, of law, of an official oath” ).

7

Cong. Globe Supp., 40th Cong., 2d Sess. 3 (1868). For more on President Johnson’s impeachment, see .

8

H.R. Rep. No. 93-1305, at 1–4 (1974). For more on President Nixon’s impeachment, see .

9

H.R. Res. 611, 105th Cong. (1998). Only articles I and III passed the House. For more on President Clinton’s impeachment, see .

10

H.R. Res. 755, 116th Cong. (2019); H.R. Res. 24, 117th Cong. (2021). For more on President Trump’s impeachments, see .

11

See, e.g., The Federalist No. 70, at 424 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (observing that “a due dependence on the people, and a due responsibility” would provide a check on an executive’s behavior); id. at 428–29 (describing “the restraints of public opinion” as one of the “greatest securities” the people have for faithful exercise of the executive power); Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 The Papers of James Madison: Congressional Series 208 (J.C.A. Stagg ed., 2010) (suggesting that “the hope of being rewarded with a reappointment” is “the principal motive to the faithful discharge of [the executive’s] duties” ).

12

Joint Congressional Committee on Inaugural Ceremonies, Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, at 6 (1st Sess. 1989).