And the Band Played Hail to the Chief

CNN is reporting that Barack Obama took the oath of office a second time Wednesday night, once again administered by the Chief Justice of the U.S. Supreme Court. Presumably they thought the second time would be the charm.

At the beginning of Barack Obama’s inaugural address on Tuesday he stated, “Forty-four Americans have now taken the Presidential oath.” The fact checkers were quick to point out that the number it is actually forty-three. While Barack Obama is counted as the forty-fourth President, Grover Cleveland is counted as both the twenty-second President and the twenty-fourth President because he served two nonconsecutive terms, so that would make only forty-three persons who have taken the oath. Some fact checkers were also saying that the number still stood at forty-two because the oath of office had not been not properly administered to Barack Obama. Oh my.

Without repeating all the particulars here, the problem in a nutshell was that the phrase “will faithfully execute the office of President of the United States” instead came out “will execute the office of President of the United States faithfully” due to some misprompting by Chief Justice John G. Roberts, Jr. The G. stands for Glover, which happens to be old baseball slang for a goof-up when a player fielding a ground ball can’t get the ball out of his glove to throw the runner out.

So to settle all arguments they did a do over Wednesday night. But I am looking at the White House Photo of the second oath, posted on CNN and I don’t see a Bible. Granted, a Bible is not strictly necessary under the U.S. Constitution, but … has he committed another glover?

The nutcase tax protesters are going to crawl out of their shells claiming they don’t have to pay their federal income taxes because the words to the first oath were wrong and the second oath wasn’t sworn on a Bible. You see, all executive power in the U.S. federal government derives from the President, so if the President is not properly sworn the Internal Revenue Service does not have the power to collect income taxes, etc., etc., etc., so the argument goes. Such arguments play great on the internet and talk radio and always lose in court. But, please, let’s not do this oath a third time.

As it happens, this is not the first time that a President has repeated the oath of office because of concerns it was not administered correctly. Vice President Calvin Coolidge was sworn in as President by his father, a Vermont justice of peace and notary public, after receiving word that President Warren Harding had died. Vice President Chester Arthur was sworn in as President by a New York State Supreme Court judge after President James Garfield was assassinated. In both those cases, the concern was that the oath had been administered by a state official, and needed to be administered by a federal judge to be valid.

Other Presidents have deviated somewhat from the exact Constitutional text without doing a do over. For example, when Lyndon Johnson took the oath in 1965, he said “office of the Presidency of the United States” instead of “office of the President of the United States.” In 1929 Herbert Hoover was incorrectly prompted by then Chief Justice William Howard Taft to say “"preserve, maintain, and defend" the Constitution, instead of "preserve, protect, and defend.” Taft was also a former President.

One salient fact has been omitted in everything that I have seen on this small controversy. When Chief Justice Roberts finished administering the oath on Tuesday, the band played Hail to the Chief. There is one law that is higher than any statute passed by Congress, higher than the Constitution of the United States, higher even than any international law or treaty. That is band law.

The one fundamental principle of band law is that decisions of the band are final. The band decides who is in the band and who is not. The band decides if its instruments are in tune before it begins to play. When it has gotten off to a bad start, the band decides whether it will start over or just keep playing. The band decides whether to take requests from the audience and whether to honor those requests. And the band decides whether or not it will give encores. There is no appeal from the decision of the band. It should be noted that in both instances where U.S. Presidents retook the oath of office, there was no band.

The band played Hail to the Chief for President Barack Obama after the administration of the first oath on Tuesday, therefore, Barack Obama was duly sworn in as President of the United States.