Quick Take
Officials serving in President Joe Biden’s administration have taken their oaths of office, and most can be seen in videos from their swearing-in ceremonies. But a video circulating on social media falsely suggests that they haven’t been sworn in and are “acting as elected officials without swearing an allegiance to the Constitution.”
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Members of President Joe Biden’s administration have taken their oaths of office, reciting an oath that swears an allegiance to uphold the Constitution.
The founding document specifies the exact language of the oath only for the president of the United States. But it also says that other officials — including “all executive” officers – “shall be bound” by an oath.
The oaths taken by federal officeholders are seen in recorded swearing-in ceremonies for about a dozen Biden administration officials, contrary to a claim that’s been circulating on social media.
Ann Vandersteel, a conservative commentator and conspiracy theorist whom we’ve written about before, posted on Twitter in April, “BREAKING NEWS! PUBLIC OFFICIALS DEVOID OF OATHS OF OFFICE!” That claim has now been adapted and repeated in a video circulating on Instagram.
The original claim and the adapted video both suggest that without having taken their oaths, the officials are serving illegitimately.
The video uses audio from Vandersteel’s original claim, saying, “Do we have public servants in office who are acting as elected officials without swearing an allegiance to the Constitution?”
The video has garnered comments such as, “Those who have no sworn oaths need to be sent to gitmo for treason,” and, “Clears up a lot. No oath to our constitution then they can’t violate it.”
But the video gives the wrong impression.
First, all the officials named or referenced in the video, except for Vice President Kamala Harris, aren’t elected, as the video says. They were appointed. And those whose nominations were confirmed all took their oaths of office, as seen in videos of their swearing-in ceremonies or reported in press releases and news articles.
Vandersteel’s claim is based on a document labeled “Petition for Writ of Quo Warranto” that says it was submitted to the U.S. Attorney’s Office in Washington, D.C.
The petition claims that the named officials may not have properly recorded their oaths of office and, if so, they should be removed.
But the federal statute it cites doesn’t have any bearing on the validity of the officeholder’s appointment. Rather, the statute — 5 U.S. Code, Section 3332 — requires officeholders to file an affidavit swearing that they haven’t paid for or otherwise bought their office.
The statute says that “within 30 days after the effective date of his appointment,” the officeholder must file their affidavit. That’s the key language, said Evan Bernick, an assistant professor at Northern Illinois University College of Law.
“The appointment is ‘effective’ regardless whether the affidavit is filed,” Bernick said in an email to FactCheck.org. (Emphasis is his.) “There is no suggestion here that filing is a condition precedent for taking office or essential to remaining in office.”
That’s also what the U.S. Court of Appeals for the Eighth Circuit found when it rejected a similar argument leveled against Kenneth Starr, the independent counsel who led the Whitewater investigation during the Clinton administration. Starr’s authority was challenged because he didn’t file an affidavit, as required by Section 3332.
“Although Congress can impose conditions on an appointee which must be satisfied before that appointee takes office, the affidavit requirement found in 5 U.S.C. section 3332 is not such a condition precedent,” the court said. “In support of this conclusion, we need only refer to the language of section 3332. That language requires that the affidavit be filed ‘within 30 days after the effective date of [the] appointment.’… The use of the word ‘after’ expressly negates the claim that the filing of the affidavit is a condition precedent to Starr’s execution of his duties as Independent Counsel.”
So, Bernick said, “It makes about as much legal sense to say that failure to comply with the Section 3332 requirement results in lack of authority to hold office as it does to say that it results in a fine of a bajillion dollars. The statute provides for neither remedy.”
The only constitutional requirement is that they take an oath, he said, which is codified in Section 3331.
“There’s no argument that they didn’t comply with Section 3331,” Bernick said.
No case related to the petition cited by Vandersteel has been opened, according to our search of federal court records.
The officials named in the petition are:
Rochelle Walensky, director of the Centers for Disease Control and Prevention (who recently announced she’ll be stepping down at the end of June). Walensky was sworn in on Jan. 20, 2021.
Janet Yellen, secretary of the Department of the Treasury. Yellen was sworn in on Jan. 26, 2021.
Jennifer Granholm, secretary of the Department of Energy. Granholm was sworn in on Feb. 25, 2021.
Janet Woodcock filled in as the acting commissioner of the Food and Drug Administration from January 2021 to February 2022. We found no record of her swearing-in.
Xavier Becerra, secretary of the Department of Health and Human Services. Becerra was sworn in on March 26, 2021.
Pete Buttigieg, secretary of the Department of Transportation. Buttigieg was sworn in on Feb. 3, 2021.
Antony Blinken, secretary of state. Blinken was sworn in on Jan. 27, 2021.
Alejandro Mayorkas, secretary of the Department of Homeland Security. Mayorkas was sworn in on Feb. 2, 2021.
Miguel Cardona, secretary of Department of Education. Cardona was sworn in on March 2, 2021.
Gina Raimondo, secretary of Department of Commerce. Raimondo was sworn in on March 3, 2021.
Merrick Garland, attorney general. Garland was sworn in on March 11, 2021.
Robert Califf, commissioner of the Food and Drug Administration. Califf was sworn in on Feb. 15, 2022.
Marty Walsh, former secretary of the Department of Labor. Walsh was sworn in on March 23, 2021.
Julie Su has been nominated as the secretary of the Department of Labor, but hasn’t yet been confirmed. She is serving as acting secretary, pending her confirmation.
Lloyd Austin III, secretary of the Department of Defense. Austin was sworn in on Jan. 22, 2021.
Kamala Harris, vice president. Harris was sworn in on Jan. 20, 2021.
So, we found that 14 of the 16 officials named in the petition have taken the required oath. Of the other two officials, one was serving as an interim appointee and the other has not been confirmed yet.
As to the petition’s claim that the officials have not properly recorded their oaths of office, Kermit Roosevelt, a professor of constitutional law at the University of Pennsylvania, told us: “This sounds like one of the absurd social media conspiracy theories that float around. There is definitely no requirement in the Constitution that officials have proof that they took the oath of office.”
We reached out to the two lawyers listed on the petition for comment, but haven’t heard back.
Editor’s note: FactCheck.org is one of several organizations working with Meta to debunk misinformation shared on social media. Our previous stories can be found here. Meta has no control over our editorial content.
Sources
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