City Paper is not for tourists
I think Joe Biden was president for a few minutes there, today, if my jailhouse reading of constitutional law is correct. The constitution says that “Before he enter on the Execution of his Office,” the president-elect has to take an oath of office. The 20th Amendment says that “The terms of the President and Vice President shall end at noon on the 20th day of January,” and that “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”
Biden was sworn in before noon; Obama wasn’t. What are your memories of the brief Biden presidency? Yo Yo Ma played the whole time!
UPDATE 1:21 p.m.: My friend Ken Katkin, an actual constitutional law professor, wrote this on my Facebook page (Ken, please don’t sue me!) in response to another friend who asked whether the oath weren’t meaningless:
No, the oath is *not* legally meaningless, even if it is a ritual. Art. II Sec 1. Cl. 8 of the US Const. clearly states that “Before he enter on the Execution of his Office, he shall take the following oath. . . ” Therefore, from 12:00 noon until about 12:01 pm today, the President of the USA was Condoleeza Rice. From 12:01 until about 12:03 pm the President of the USA was Joe Biden. Interestingly, this means that, technically, Obama was *not* the first African-American President! (And yes, I actually am a constitutional law professor!).
I was right! Joe Biden WAS PRESIDENT!
Ken also wrote:
I should add that the language of the Presidential Succession Act actually puts the Speaker of the House of Representatives (Nancy Pelosi) ahead of the Secretary of State in the line of Presidential succession. But most Constitutional scholars believe that an “interbranch appointment” of this nature would unconstitutionally violate the doctrine of Separation of Powers. Which is why I said that the Secretary of State would be next in line, rather than the Speaker of the House.
This is, obviously, completely awesome.
Ken wrote me to elaborate, saying he’d posted this on a constitutional law message board (I’ll bet those are SIZZLING right now!)
(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?
—Ken Katkin Professor of Law Salmon P. Chase College of Law 556 Nunn Hall Northern Kentucky University Highland Heights, KY 41099