City Desk

Remember When Biden Was President?

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

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  • http://www.washingtoncitypaper.com/blogs/sexist Amanda Hess

    best President ever!

  • http://www.malnurturedsnay.net Malnurtured Snay

    Well, except Obama *had* been chosen -- on November 5th. Per the 20th Amendment, Obama became President at noon, even without the formality -- and that's all it is -- of the Oath of Office.

  • Jason

    What about Colin Powell. Wasn't he the first African American president in 2005 for a few minutes? What happens when a president is re-elected? Does he lose his spot for a few minutes before his re-oath?

  • Sam

    With all due respect to Ken, I disagree. The 20th amendment states that the term of the new president begins at noon. Article II Section 1 requires the oath before the Execution of the Office. So Obama was President, but could not act in the capacity until taking the oath.

    At precisely noon, neither Rice nor Biden had taken the Presidential oath either, so neither of them could act in the capacity of President. (As a sidebar, I think Biden's oath was already completed by noon)

  • http://www.dcwatch.com Gary Imhoff

    Actually, as I remember, it's customary (though I have no idea when the custom began) for the president-elect to take the oath privately before the public ceremony, just in case the ceremony does run overtime. As I remember, the issue came up in Bill Clinton's first inauguration, and this was the explanation given for why there really was no gap in the presidency.

  • http://Anon Anon

    You have not read the 20th amendment carefully. Section 1 removes the oath as a prerequisite to taking office.

    The terms of the President and Vice President shall end at noon on the 20th day of January . . . and the terms of their successors shall then begin.

  • Jed S-A

    I disagree with you, Ken. The 20th Amendment is an AMENDMENT to the Constitution. It states that the term starts at noon, Obama's term started at noon.

    There is absolutely no reason to claim that Condoleeza Rice was President for a few minutes there. If your argument is that without the oath, Obama was not President yet, well, Rice certainly was not the President because she didn't take the oath either.

    If the oath is truly a requirement, then nobody was President for those three minutes.

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  • Ken Katkin

    Thanks to all who responded. Sam is correct that Biden’s oath was already completed by noon; I was wrong about this earlier. Gary Imhoff is right that it is customary for the President to take the Oath privately before the public ceremony, though I don't know whether President Obama followed that custom today or not. I hope he did. Jed S-A and Sam are both correct that Secretary Rice never took the Oath, and for that reason probably was never eligible to assume the Office. In fact, I made that last point myself in the final sentence of my earlier post.

    On the other hand, the 20th Amendment most certainly did not remove the Oath as a prerequisite to assuming the powers of the Presidency (nor did it remove any of the Constitution’s other qualifications, such as age and US citizenship). The Oath may well be a mere formality, but it has formal legal significance. Art. II. Sec. 1 Cl. 8 provides that taking the Oath is a prerequisite that every President must fulfill *before* he can "enter on the Execution of his Office."

    And while Section 1 of the 20th Amendment states that the incumbent's term ends (and his successor's term begins) at noon on Inauguration Day, Section 3 of the 20th Amendment makes it crystal-clear that the "successor" who takes office at noon on Inauguration Day need not necessarily be the "President-elect." Rather, Section 3 prescribes detailed rules for determining who the "successor" will be if the President-elect is temporarily unqualified to take office. A President-elect who has not taken the Oath of Office is temporarily unqualified to take office, until he does take the Oath of Office. (Similarly, a President-elect who was elected at age 34 would be temporarily unqualified to take office, until reaching his 35th Birthday).

    On January 20, 2009 (if there was no private oath earlier in the morning), President Obama was temporarily unqualified to take office until after he took the Oath at about 12:03 pm. Accordingly, Vice President Biden (who had taken the Oath a minute before noon) "act[ed] as President until a President shall have qualified." (20th Am., Sec. 3). And a few minutes later, after taking his Oath, President Obama did qualify to "enter on the execution of his office." (Art II Sec 1 Cl. 8). All's well that ends well!

    Finally (and I apologize for getting technical here), Sam's proposed distinction between the ability to become President and the ability to exercise Presidential powers is an interesting one, which some Con Law professors accept. However, Congress rejected any such distinction when it implemented Section 3 of the 20th Amendment by enacting the Presidential Succession Act of 1947. In 3 U.S.C. sec. 19(a)(1), the Presidential Succession Act equates the inability of a President-elect "to discharge the powers and duties of the office of President" with a "failure to qualify" to be President or Vice President. Moreover, any interpretation of the 20th Amendment under which the Office of the President might be occupied indefinitely (or even briefly) by a person who could not exercise the powers or discharge the duties of the Office would seem to nullify Section 3 of the 20th Amendment, and also to be inconsistent with just about any theory of Executive Power.

    p.s. to Jason: This whole issue under discussion revolves around whether the Oath is taken before noon or after noon on Inauguration Day. This problem could never arise if the incoming President took the Oath before noon. I don't know what time of day the Oath was administered in 2005.

    --Ken Katkin

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  • LegalCardinal

    This interpretation and rationale is completely ridiculous. Pres. Obama officially became President at 12:00 pm, although he did not take the oath of office until after that. There is a reason this professor does not teach at a top law school. Think people. Think.

  • Jonathan

    I don't know anything about constitutional law. As I read the 3rd section of the 20th amendment it doesn't seem to talk about the Vice President at all, only the Vice President elect. If Biden had taken the oath before noon, then (and I could be mistaken here) he wouldn't have been Vice President elect at noon when Bush/Cheney's terms expired. Does this change anything?

  • Sam

    Ken: On the technical details and interpretation of 3 USC 19(a)(1), the initial clause states "If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President or Vice President...":

    The question hinges on the interpretation of "inability" and "failure to qualify". Inability as it appears in Art II Sec 1 Cl 6 and further clarified in Section 4 of the 25th Amendment, suggests an incapacitation (i.e. medical or physical). In any case, VP Biden did not take the opportunity to submit a declaration of any inability in the intervening minutes. I interpret "failure to qualify" as the qualifications for office specified under Art II Sec 1 Cl 5.

    Today there was no case of inability or failure to qualify. Obama was able, and he was qualified. He began holding Office at noon, but simply could not "enter on the Execution of his Office" - which I read as issuing an order as President, or performance of other Presidential duties (i.e. signing the formal nominations of Cabinet members) - until taking the oath.

    As we have both observed, nobody else completed the oath in the intervening minutes either, so it seems either nobody was President during that time, or Obama was but not in a capacity to act yet.

    I'm no fan of astrology, but the listing below was handy. If the times given in the link are correct, this isn't the first time this has happened:
    http://www.astrologyweekly.com/data-archive/us-presidential-inauguration-dates.php

    Assuming Obama took the Oath, the presidential vacuum has been filled... but there is of course the other academic matter as to whether Obama properly completed the Oath. I for one was cringing when it got flubbed. Perhaps it's one of those things that can be remedied by a private pre-Oath Oath... Which has been done before when Inauguration Day fell on a Sunday...

  • http://glencampbell.name Glen Campbell

    Note that the Constitution says the term of the President will begin at noon on 1/20, whereas it says the execution of the office cannot begin until the oath is completed. So, Obama was President; he just wasn't entitled to execute the office until he completed the oath.

    The same rules would apply to Condi Rice—and she never took the oath, meaning that she would not have become president, either.

  • adam

    Does that mean that the Executive Orders that Obama signed and timestamped 12:01pm are invalid? hmm...

  • Josh Anderson

    The senate clock is used as the official clock, and tradition mandates that the senate clerk holds the clock at noon until the proceedings are finished.

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  • http://www.whirlednutdeli.com Terry

    At noon, Biden was, at most, Acting President. Note that the 22nd Amendment says that the Vice-President shall *act* as President, not that he shall *hecome* President.

    By my clock (set to NIST), Vice President Biden took his Oath of Office before noon, and President Obama at about 12:03. That means that, at most, Vice-President Biden was Acting President (but NOT President) for about 3-4 minutes.

    If we accept that your clock is correct, then either Speaker Pelosi or Secretary Rice was Acting President for about a minute until Vice President Biden was sworn in. In either case, though, a law is legally presumed constitutional until it is challenged in court. If Speaker Pelosi in fact became Acting President, no one challenged it, and no court ever ruled the appointment unconstitutional, then it would have been Speaker Pelosi and not Secretary Rice who would have been Acting President.

    In any case, though, none of them took the Presidential Oath of Office and became the actual President of the United States. Even if Biden and either Pelosi or Rice became Acting President, that is not the same thing as President, and Obama is still the 44th (not 45th or 46th) President of the United States.

  • Nick

    Wikipedia says that Rice is no longer a SoS, but that William Joseph Burns is acting SoS. That would mean that if Joe Biden had not yet been sworn in at noon (which he was as far as I remember), then Burns would be the president.

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  • Brandon

    actually, that is not true. even without being sworn in Barack Obama was president at 12:00 noon. if you were to read the 20th amendment, the president-elect legally becomes president at 12:00 pm of 1/20.
    check it yourself

    Biden was vice president at 12:00pm
    Obama was president at 12:00pm

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  • Phil

    The biggest disadvantage to being anal retentive is that one sees only trees rather than the forest. Arguing minute detail leads to getting lost in the forest. The meaning of the election and the law is that the only person who became the president is the man who was chosen. Remember only one person took the oath of office.

  • Carlos Teodoro

    Obama was the President at 12 noon on Jan 20,2009. All others regardless of how your logic works would have been "Acting President" at best.

    Carlos

  • Anson

    That "law professor" is a moron.

    Condoleeze Rice was unemployed as of 12:00 noon, as was Bush, Cheney, and every other member of the Bush administration. It doesnt just "carry over" the fact that he's a constitutional law professor and he gets this wrong - not only does he call Rice the first African-American president, AND the first woman president, he ALSO goes on to call Biden president shows that he's not fit to teach first-graders the alphabet, much less teach college students constitutional law.

    He should be ashamed of himself.

  • Scy

    Stupid. As soon as Noon hit it was a switch in power. And every damned ruling (con lawyer here) that deals with oaths and their related ilk say it's only gotta be close. Suppose it's said in a way that leaves out a comma? Stop being so damned dumb America. It's embarrassing.

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  • JantjePietje

    @Josh Anderson
    I know that the senate clock can be stopped and are stopped for certain procedures but I can't find that it will be done for the inauguration specifically
    anyway sounds very plausible and so the whole discussion becomes meaningless because it just was noon until Obama took the oath

  • Lou

    I whole heartedly agree with Phil #27 - too many trees, not enough forest. However, all this banter does bring a much more serious question into play. Had there been a sniper (however unlikely you think that might have been, it was still a possibility) who got off several shots and took out Obama, Biden, Pelosi, et all; or had there been a bomb (again, unlikely, but not beyond the realm of possibility, unfortunately) that took out the entire grandstand -- who THEN becomes president? I thought everyone in line for possible succession was never supposed to all be in the same place at once to avoid just such an instance, but in this case we've got everyone all bunched together in the bleachers with lots of Secret Service milling about, but a virtual target drawn on them, nonetheless. Anybody want to weigh in? As a citizen I'm curious.

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  • http://na waste of time reading

    OMG people do you have to pick wholes in every single bloody thing the world has to offer nowadays.

    Enjoy the day and get on with life...

    Also is it necessary to have 4 eve online banners on this site? how is that related to the content of this website?

    Anywho

  • another lawyer

    Lou,

    Defense Secretary Robert Gates was taken to an undisclosed military location outside of the Washington, DC area for Inauguration Day. It's traditional for one cabinet member to be absent from these sorts of gatherings, including inaugurations and State of the Union addresses. Gates was a perfect choice because he was already a cabinet member and in the line of succession and Obama planned to keep him on. As Ken notes, a cabinet secretary's term doesn't automatically expire at noon.

    Ken, with all due respect, I agree with Sam. I think the better interpretation is that Obama was president at noon but couldn't execute any of the powers of the presidency until he was sworn. Barring that, is there any requirement that there always be a president? This isn't a monarchy; I don't see any reason why a short gap in the office presents a crisis.

    And to those of you complaining about the level of detail in this analysis, you obviously don't spend a lot of time with lawyers. Law is detail.

  • lkt

    Prior to the inauguration, Robert Gates was named as successor, which is why he was taken to an undisclosed location. Neither Condelezza Rice nor Joe Biden was ever POTUS or acting POTUS. The Constitution clearly states that President Obama's term began at noon on 1/20. The End.

    Way to give the right wingers & the nut cases (I know, they're one in the same) red meat to try to further impede on the historical election of America's first black POTUS, President Barack Hussein Obama.

    But, I suppose since you only teach in Kentucky, it's understandable how you got this soo wrong.

  • Skipper

    This is the most circle jerk attention a no-name professor at a fourth-rate law school has gotten in ages!

  • Espen, Norway

    Though I have read with excitement, I also agree to those who tell "get on with life" and so on. But as a lawyer (not American law) myself, the temptation to make a comment is too strong:

    One thing I would like to point out: The meaning (or spirit if you like) of the transition at noon sharp is that there shall be no possibility what so ever for the former president to try to force himself to stay in power.

    If military coup makers loyal to the former president were to try to delay the "president elect" to take the oath, the spirit of the rules is that the president elect becomes president at Jan. 20. noon. Let that be clear if nothing else is!

    I think the answer is like many reasonable minds have already spoken: Obama became president, though did not have the power to act as president before he had taken the oath properly.

    I had also fun (given that we were of course not into this coup making situation) about the fact that the time in these circumstances is defined by the Senate clock, and the possibility that the Senate clock might be stopped!

    At the end of the day, this is not even a mouse's piss in the ocean compeered to the presidential election in 2000.

    Espen, Norway

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  • http://www.anncoulter.com :U

    well I think Barack Hussein Obama isn' President because he screwwed up the oath the first time and didn't use a Bible the second.

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  • Keith

    Since we're talking about details here it's worth noting that Barack Obama is actually just as white as he is black, there is nothing anymore significant in and of itself to being half black than there is to being half white. His racial status is meaningless

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