So President Obama took the oath of office again, after the little flub he and Chief Justice Roberts made during the big ceremony. All over the blogosphere, pundits were putting off their angels-on-pinheads counting to debate whether Obama was technically the president, since he didn't recite the oath precisely as it's written in the Constitution. Then Obama and Roberts went and mooted the whole business. But I had a couple of thoughts I hadn't seen discussed anywhere, and I thought I'd throw them out here for posterity.

First, Article II requires that the president "take" the oath. I'm not going to do the Blackstone/Madison historical research to find out how the framers defined the word "take," but are we sure it requires the president to utter the words out loud? Could he or she sign the oath on paper? What if the president is mute? Okay, I realize it's highly unlikely we'd ever elect a mute person president. But what about this hypo: a tragic accident kills the president and injures the vice-president by taking the veep's power of speech. (Please, no Biden jokes here.) If the vice-president were physically unable to speak at that moment, could he or she still assume the powers of the presidency?

Second, this fetish-making of literalism is amusing to me because none of the people taking the position that the January 20th oath was technically ineffective have mentioned that no president has spoken the oath exactly as it appears in the Constitution. Let's refresh -- the oath is printed in Article II as follows:

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.

But nobody taking the oath has ever uttered the phrase "swear (or affirm)" -- they have all chosen one or the other! If it's so vitally important, so important that the wheels of the entire government screech to a halt otherwise, that the president verbalize every word in the oath precisely as they appear in the charter, then why shouldn't that same logic require the president to speak the words in parentheses as well?

Note that there's nothing crazy about saying both "swear" and "affirm." I've seen lots of occasions when someone administering an oath to a group used both words so the oath-takers could (mentally) choose whichever one they adhered to with their "I dos." Adding "(or affirm)" doesn't take anything away from the meaning of the oath. And it would, of course, be more faithful to the exact wording in the Constitution. So, if Barack Obama wasn't president because he said the word "faithfully" in the wrong place, why is he president despite leaving out the words "(or affirm)" when he took the oath?

Big news from the Supreme Court today on the issue of qualified immunity, in a case called Pearson v. Callahan. Here's a summary from Prof. Kerr at Volokh, and more from Prof. Althouse and Steve Minor. The Court, in a much-anticipated move, overruled the 2001 case Saucier v. Katz, and held that Saucier's two-step mode of analysis was no longer mandatory, but instead would now be discretionary.

Long-time readers know that I opposed overruling Saucier, and I won't re-hash my argument again in this post. I'll just link to previous writings here, here, here, and (especially) here. Steve Minor's post also links to several of his prior posts on the doctrine.

Briefly, I'm not as optimistic as the (unanimous) Court that future courts will continue to decide the constitutional questions. And I think that presents the dangers of stagnating the development (and not necessarily expansion, I also mean clarification) of the law and failing to provide guidance to lower courts and litigants. It will simply prove too easy, I fear, to skip right to step two, since it will usually be the easier question to answer. I understand the principle of constitutional avoidance, but (a) it's a prudential doctrine, not an Article III mandate, and (b) Pearson will tempt lower courts to rely on the avoidance doctrine to skip straight to the "clearly established" prong of Saucier.

One final thought: I wonder if I'm alone in seeing a parallel between Pearson and the Booker line of cases. A mandatory but constitutionally-suspect guideline is made discretionary but still somewhat advisory? It's a bit of a stretch, I admit. But I suspect that the lower courts will be much more eager to exercise their discretion in qualified immunity cases than they have proven to be so far in sentencing cases.