The President’s Oath

As a matter of Constitutional law, which is President Obama’s greater responsibility: to transfer power to Donald Trump on January 20th — or to refuse to?

I don’t ask this question lightly. Any attempt by the President to thwart his successor is certain to tear the country apart and produce a horrifying spasm of political violence. But the question must be asked, because the law may require him to do exactly that.

Consider: he took an oath to preserve the Constitution, which mandates an orderly transfer of power; and we as a nation take rightful pride in our long history of peaceful changes of leadership.

But the President is also sworn to defend the Constitution — against, for example, those who with the help of adversarial foreign powers openly seek to undermine it. If such a figure manages to position himself, via deception and subversion of the democratic process, to receive that peaceful transfer of power, surely no reasonable interpretation of the Constitution requires that the country roll over and submit?

The President has the authority to suspend the Constitution in times of national emergency. Is this an emergency? I cannot imagine a clearer and more present danger to the Constitution than what we’re witnessing right now. Even an invading army or missiles in the air could threaten only our lives and property, not our founding principles.

So the President may be obligated to declare a state of emergency and retain control of the executive branch. It’s hard to know which would be worse: the rioting and fighting that would inevitably result, or the widespread human misery and economic destruction we’re in for otherwise.

Critics would charge that, by refusing to relinquish power, President Obama would become the autocrat he’d be claiming to oppose — and they wouldn’t be wrong. For this reason alone it is certain not to happen. Thus the paradoxical asymmetry of this dilemma: do you think that disrespecting the rule of law would cause Donald Trump to hesitate for even a moment?

[A version of this article first appeared as a Facebook post, in response to which one friend wrote the following.]

This is the exact reason that we have Electors. I’m not talking about why certain states have more than they should. I’m talking about why we have Electors in the first place. It is to prevent this exact situation from happening.