Prof. Ken Katkin writes, though with the preface that this is "just for fun":
(1) The 20th Amendment provides that "[t]he terms of the President and Vice President shall end at noon on the 20th day of January...."
(2) Art II., Sec. 1 Cl. 8 provides that "[b]efore he enter on the Execution of his Office, [The President] shall take the following oath...."
(3) President Obama did not take the Oath of Office until about 12:03 pm today, after Vice President Biden took it at about 12:01 p.m. (Yo Yo Ma and Itzhak Perlman were still fiddling at noon).
(4) Therefore, there was a brief window (just after noon) when George Bush and Dick Cheney were no longer President and Vice President, but Barack Obama and Joe Biden also were not yet qualified to enter on the Execution of their offices.
(5) The Presidential Succession Act, 3 U.S.C. sec. 19(a)(1), provides: "If, by reason of ... failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." Section 19(b) states that the President Pro Tempore of the Senate shall act as President (under the same terms and conditions) if the Speaker of the House fails to qualify.
(6) Neither Nancy Pelosi nor Robert Byrd actually resigned their seats in the Congress. Thus, neither of them qualified to become Acting President under the Presidential Succession Act. Plus, interbranch appointments might be unconstitutional anyhow. See Akhil Reed Amar and Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995); but see Howard Wasserman, Structural Principles and Presidential Succession, 90 Ky. L.J. 345 (2002).
(7) Section 19(d)(1) of the Presidential Succession Act provides: "If, by reason of ... failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State ...."
(8) Notably, Section 19(d)(1) does not condition the Secretary of State's assumption of the powers and duties of the office of President on resignation of her current office, nor does elevation of the Secretary of State raise any constitutional issue of interbranch appointment.
(9) The term of office of the Secretary of State does not automatically terminate at noon on the 20th day of January.
(10) On January 20, 2009, Condoleeza Rice was (and is) still the Secretary of State.
(11) Accordingly, from 12:00 noon until 12:01 p.m. (when Vice President Biden took the oath of office and became Vice President), Condoleeza Rice was momentarily the Acting President of the United States, our first African-American President.
I suppose the obvious counterargument is that Secretary Rice also never took the Oath prescribed in Art. II, Sec. 1, cl. 8, and thus was no more qualified than Barack Obama or Joe Biden to act as President at 12:00 noon. But if Secretary Rice was not President from noon to 12:01, then who was?
See also the Washington City Paper blog, which first blogged Prof. Katkin's analysis (though please note that I have Prof. Katkin's permission to reprint his thoughts). To be sure, I think Orin Kerr is right that under the Twentieth Amendment that "the terms of [the incoming President and Vice President] shall then begin" when the outgoing pair's "end at noon on the 20th day of January," so Pres. Obama was probably President starting at noon, even before the oath was taken. But Prof. Katkin's analysis is more fun.
UPDATE: Prof. Katkin now reports that Biden took his oath of office before 12 noon, despite earlier press accounts, so all the above is moot. Another beautiful theory destroyed by ugly fact.
Related Posts (on one page):
- The First African-American President?
- Who Was President from 12:00 to 12:10?:
Now you know why some people have a low opinion of lawyers.
Who says there has to be a President every minute of every day?
So Byrd is now fourth in line? Please tell me that the Secret Service have taken steps to prevent Pelosi, Biden, and Obama from ever being in the same room together. The horror!
It is also not obvious that the fact that no one is the President for ten minutes means that there is, in fact, a vacancy in the office. Congress declared who is to fill the vacancy created when it opened and counted the electoral votes. The fact that there order isn't immediately carried out is of no importance. A better definition of vacancy authorizing resort to the line of succession, would be a situation in which no one is currently serving as President, and the person next designated to serve is unable or unwilling to take the oath of office.
In the same way, one wouldn't jump over, say, the Secretary of State in the line of succession, simply because it took ten minutes to administer the oath of office to the Secretary of State after the earlier persons in the line of succession had died.
We are a Republic and not a monarchy, and it is the law of reasonable government officials, and not some natural law of rulership, that should apply in these circumstances.
Someone doesn't do things just for fun.
So that means Biden is still President?
Exactly. Even in a "normal" case of succession, when both the President and Vice President fail to qualify and whoever is next has to first resign and only then becomes President. So during that period before he/she resigns, there's no president.
I, Barack Hussein Obama, do solemnly swear that I will execute the office of the president of the United States faithfully . . ."
and not the actual one prescribed by the Constitution.
Assuming Orin is correct, and both Biden and Obama became President and Vice-President at noon (and I agree with him), they were unable to exercise their duties until the oath was given. Assuming that Biden gave his oath before noon (see my earlier post) he still could not exercise the power of the President.
According to section 4 of the 25th Amendment, the VP does not act as president until he and a majority of the principal officers of the executive departments transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. That did not happen.
According to the Presidential Succession Act, when neither the President nor the Vice President can discharge the duties of the President, the Speaker of the House acts as president upon resignation. That didn't happen. Likewise, the President pro tempore failed to resign.
Thus, it falls to Sec. Rice. As far as her not taking the oath, the Presidential Succession Act doesn't expressly require it. It merely states that taking the oath constitutes resignation of the previous position. Further, the Constitution doesn't require the oath because the oath must be given by the President. The Constitution doesn't require an oath by an Acting President (a position which is clearly created by the 25th Amendment's use of the capital letters: "Acting President," not acting president).
Therefore, Rice was Acting President for a couple of minutes.
Patrick22 asks whether the Constitution specifies a time zone, and the answer is no. Why? Because there were no time zones in 1787. Each locale judged the time for itself, and most had no official time whatsoever. Time zones were invented in the nineteenth century so railroad schedules would be unambiguous. I think the only reasonable interpretation is that terms begin at noon in Washington, D.C.
There are, after all, precedents for not having a sworn-in President. I read an argument about one period of just over twenty-four hours, during which a presumptive President did not take the Oath because he was not only unaware of the passing of the then-President (which made him eligible), but was in fact not aware of much at all, being passed-out-drunk in a hotel. Some argue that he actually was President until another man took the Oath, others that he was not as he did not take the Oath.
In so far as this argument carries any water, I think it carries even less with a second term, as the individual had already taken the oath before.
Wrong! The magic spell that makes one president cleerly expires at noon on the 20th. Even a second termer must repeat the incantation to be again imbued with the mystical powers of the presidency!
At the time the president pro tem of the senate, David Rice Atchison, was next in the line of succession after the vice president. Atchison was not "passed out drunk in a hotel" that Sunday; he had missed a great deal of sleep while working on last-minute legislation, and he spent the day in bed getting caught up.
It never occurred to Atchison -- or to anyone else -- that he even might have been president for a day until much later. It was understood that Taylor became president on Sunday even though he wasn't sworn in until Monday.
Another point is that Atchison never took the oath of office. If not having taken the oath meant that Taylor wasn't president, then it meant Atchison wasn't either.
"[I]f the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."
Since Joe Biden was already sworn in, it would seem to me that he was "acting" President for those minutes (under this line of interpretation). Of course he didn't take the Presidential oath either, but with the distinction between the acting President and the actual President, I'm not sure the same Article 2 requirements apply. I.e., Article 2, strictly speaking, doesn't seem to say what someone who is NOT the President has to do before executing the office of the President.
Incidentally, CBS News at least superficially took the "Joe Biden" interpretation during the inauguration when they said something like "it's 12:05, technically Joe Biden is President right now, let's get the show on the road."
Regardless, I don't think the "Condi Rice" interpretation can possibly hold, because in order to get there, you would have to hold the "strong" view of the oath requirement, and she, presumably, has never taken the oath either. If you did hold that strong view, then basically no-one would be qualfied, so the far more plausible answers would seem to be either: 1) If you demand total continuity (i.e., that there's a singular identifiable President at every moment), then Bush was still President or at least Acting President -- something like: he was President, no one had lawfully replaced him yet, therefore the duties and responsibilities were still on him. Or 2) if you don't need total continuity, we just didn't have a President for a few minutes -- e.g.: Bush's term ended, no one (including Bush) was qualified to replace him until 12:10, therefore the office just had to wait.
Would never happen. Jack Bauer handles the first few hours of each crises before the President (or acting President) is even informed.
There could also just be two different standards for eligibility. For orderly succession, its nice to have all the formalities. If the presidency unexpectedly becomes incapacitated, people want a clear idea of who to look to for orders and aren't grabbing at bibles to swear in an acting president.
For example, the 25th amendment allows for the president to temporarily make the vp acting president and does not mention the oath. The vp takes a different oath than the president and I don't remember Bush(41) or Cheney taking the presidential oath to cover for the president during their medical procedures.
Note, I was editing when you last posted.
I mentioned the 25th just to illustrate instances where the oath is apparently not needed to succeed, at least temporarily. But that is all that is being suggested for Ms Rice.
The situation could be said to be unexpected, if according to the procedures, he should have already been sworn in.
Edward A. Hoffman: They didn't have time zones in 1789, but they did have them in 1933, when the 20th amendment, which specifies the noon start time, was ratified.
Except, Time Zones did exist when the 20th amendment was ratified. (On the other hand, Washington DC did not exist in 1787).
I'll act as though it were taken.
While Feldspar is correct that Washington, D.C. didn't exist yet, Article I, section 8 of the Constitution anticipates a federal "District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States". I think the framers knew where this district would be, but even if they didn't it necessarily would have been within the boundaries of the original thirteen states. All of those states now lie entirely in the Eastern time zone.
At noon, Obama was the President. Biden was the VP. This means our analysis switches to who has presidential power when the President cannot act. That is governed by Art. 25.
Ari Indik: Art. 25, section 1 does state that the VP becomes the President, but that section only applies when the President is removed from office, resigns, or dies. None of which applies. The only other way for the VP to get presidential power is when the president relinquishes it or when it is taken with the aforementioned letter.
Everyone: The big question with my theory (that I see) is whether Rice would need to take the Oath. I would argue that she does not for several reasons.
1. The statute doesn't expressly require it. The statute says: "The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office..." An oath requirement could be implied based on this section, but that line could also be read as, "if you are acting long enough to warrant taking the oath, then you also resign your previous post." I would think that if there really was a condition precedent to exercising the power of the President, it wouldn't be implied.
2. If an oath is a condition precedent, then it leads to dangerous uncertainty. For example, if a coordinated attack kills both the President and VP, then who is in charge. If an oath is needed, then nobody. The person in charge is the first person to track down a Judge. Lets say the Sec of Def and Sec of State have different ideas on how to proceed, should our foreign policy be dictated by a foot race? No. Plus, what if the Sec. Def wins the race. Now that he has presidential power, he can just fire the Sec of State and the Sec of the Treasury, elevating himself to the top of the list (until the Speaker of the House resigns, but that may take a while, especially if she is on the other side of country and we are under attack). A far more reasonable interpretation is the Sec of State is in charge. When the oath is finally administered, that person ceases to be the Sec of State.
3. The section in the statute that requires the oath is unconstitutional (the Constitution only requires the President to take the oath, not the Acting President, so the basis of requiring an oath is statutory). The reason that it is unconstitutional is because the statue states: "The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office..." The Constitution allows Congress to designate which officers shall act as President in the line of succession. If that officer resigns upon taking the oath, then he or she is no longer an officer, and is thus ineligible. To avoid having the line of succession collapse, this section must be stricken. Without it we lose the implied oath requirement. (Yes, I agree this is one is not a particularly strong argument).
Section 1 of the 25h applies when "the President is removed from office." Didn't that happen at noon today?
That is why District Judge Hughes was called on to swear in LBJ on Air Force One. If LBJ could just mutter it to himself, then he would have.
Someone should mention this to him and avert this potential Constitutional crisis.
I'm sure that you can refuse to pay your taxes this year. And when you are called into court, just tell the judge this little fact. He won't like it of course. But there's nothing he can do about it, since it's constitutional law. And if he gives you any guff, just point out that his flag has gold fringe, or that the wall behind him says "In God We Trust."
That will show him, and how!
Since he's still not sworn properly (as far as we know), he still can't do anything as president. So Obama's proclamation declaring today a National Day of Renewal and Reconciliation is meaningless! What a shocker.
While Secretary Rice would seem to be the one who would take over in this case, it probably wouldn't have been her. All Bush appointees were instructed to submit their resignations by today and Rice presumably resigned effective at noon today, along with the end of the Bush administration. That would mean the honor of being acting president would fall to the only Bush appointee who didn't have to resign, Defense Secretary Robert Gates.
At which point, Alexander Haig rushed forward to the podium to fill the power vacuum...
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