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Tuesday, January 20, 2009

Who was president while Perlman fiddled?

At noon, EST, by operation of the Twentieth Amendment, George W. Bush's term as President of the United States ended. At that moment, Yo-Yo Ma and Itzhak Perlman were performing (the piece that was, by the way, my wedding processional). It was not until 12:04 p.m. that Chief Justice Roberts and Barack Obama stood up, Roberts asked "Are you prepared to take the oath, Senator?", Obama answered "I am," and they began (by the way, it was Roberts who read the oath wrong initially).

So who was President between noon and 12:04? The Twentieth Amendment states, referring to the noon end of the current President's term, that "the terms of their successors shall then begin." This seems to suggest that the transition happened at noon and the oath is a formality. And if you look at the blog of the re-designed White House web site, it announced Obama-issued proclamations time-stamped 12:01 p.m. And CNN flashed on the screen that Obama had become President as of noon.

But the oath is prescribed in Article II to be taken "[b]efore he enter on the Execution of his Office." Does this mean the oath is necessary for someone to become President? Or does it mean that Obama was President but could not do anything until he had taken the oath? If so, why did Roberts call him Senator before issuing the oath and not refer to him as "Mr. President" until after the oath was completed? And does all this mean that Joe Biden was acting president for four minutes? And what of Robert Gates?

Finally, what are the odds that someone files a lawsuit arguing that Obama did not properly take the constitutionally prescribed oath of office?

Update, Tuesday, 6:15 p.m.:

Orin Kerr and Mike Dorf weigh in. And the prevailing view seems to be that he became President under the Twentieth Amendment at noon and had to take the oath before he could "enter on the execution" of his office--in other words, before he could wield any executive power. And I think I agree with that, otherwise this all becomes unnecessarily complex.

This reading also has some historical support. As Sonja noted in the comments, there was 90-minute gap between President Kennedy's death and Johnson taking the Oath on Air Force One (with Jackie Kennedy famously standing alongside him, still wearing the bloodied clothes from the assassination). And apparently the first Congress believed George Washington became President on March 4, 1789 (the day the first Congress attempted to convene), although he did not take the Oath until April 30.

Finally, one other interesting tidbit (courtesy of my FIU colleague Tom Baker, the real con law expert here): Presidents Jackson, Lincoln, and (Andrew) Johnson at various points argued that the Oath was not even necessary to exercise presidential power (that came with the job), but that the Oath gave them additional powers, namely in the realm of constitutional interpretation, beyond ordinary executive power they would have absent the Oath.

Oh, one last thing: From what I am reading, it is beginning to sound like whom to blame for the botched oath is a political litmus test. But I give Orin the final word on this.

Posted by Howard Wasserman on January 20, 2009 at 01:31 PM in Constitutional thoughts, Current Affairs, Law and Politics, Web/Tech | Permalink

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Well, I'm rather proud of our daughter, who raised this very same question to me a few moments ago (and she's not even a law student).

Posted by: Patrick S. O'Donnell | Jan 20, 2009 2:57:19 PM

I'm not sure who would have standing to bring such a lawsuit.

I agree that CNN's proclamation that Obama became president at noon regardless of whether he'd taken the oath is questionable. All the Constitution says is that's when Bush's presidency ended. CNN acted as if the taking of the oath was a mere ceremonial formality. I guess it's a similar question as to who was the president in the hour and half or so between when President Kennedy was pronounced dead and LBJ was sworn in on Air Force One.

Posted by: Sonja West | Jan 20, 2009 3:03:29 PM

Like most constitutional puzzles, this one seems to have many solutions. A plausible reading is that at noon, the president-elect becomes the President. But, "[b]efore he enter on the Execution of his Office, he shall take the [oath]." In other words, no executive actions may be taken until the oath is "taken." (An aside: I assume one can "take[]" an oath without its being administered. But must it be witnessed?) This could be argued to provide that the President-elect becomes President at noon, but he or she may not commence executive functions until after the oath is "taken."

But here's an alternative. If you think the oath could be considered a qualification of the presidency, rather than a prerequisite to executive function, then maybe the 20th amendment provides an answer: "if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified." So one might argue that Biden was able to "act as President" between noon and the oath (mal)administration at 12:05 or so. This clause does not say that Biden "serves" as President, which would presumably require the "taking" of the oath. So at noon, Biden, the VP was able to act as President until such time as Obama "qualified," which occurred a few minutes later.

Even more curious, the Constitution says that "he" shall take the oath, referring to "President." So one might argue that only upon becoming President may the President satisfy the oath requirement and then commence executive functions. That is, if the oath is "taken" before noon, it would have no effect at all because it was not "taken" by the President. I initially wondered whether this reading would mean that Biden had not satisfied the requirement, since he took the oath before Cheney's term expired. But my initial, non-con law prof, read didn't turn up on oath requirement for the VP. And Obama did not take the oath until after noon.

Ah the sheer nerdery of it all: when intentions and practicality are clear - and where the test case is unlikely ever to arise - but where the puzzle nonetheless exists.

(Also - if there were 12:01 proclamations, I can't find them. Did they take them down?)

Posted by: Christian Turner | Jan 20, 2009 3:32:56 PM

The Twentieth Amendment provides for the end of the old term and the beginning of the new one, both at exactly noon on January 20. Given that it's an amendment, and given its specificity, wouldn't that supersede any oath requirement in Article II?

Posted by: Steve Lubet | Jan 20, 2009 5:37:52 PM

Oy vey. Nerdity is right. I've loved the spectacle of all of this, and was for Obama before [you name it], but every time they talk about what a Washington society nothing W was, I feel really guilty because that describes my social habits (usually asleep by about 8 p.m. and up at about 5:30 a.m.) to a T. It makes me feel a lot better when I hear that the Obamas like to do pizza with the friends and the kids on Friday night. In this light, see LPB for an exploration of the really important trivial issue of the day.

Posted by: Jeff Lipshaw | Jan 20, 2009 6:58:18 PM

Alas, I think I am unworthy of the title "con law nerd." This whole topic makes me want to mumble, "C'mon people, get a life." Am I alone in not caring whether President Obama took the oath of office at 11:59 or 12:04?

Posted by: Vladimir | Jan 20, 2009 9:16:40 PM

Let's imagine Pakistan decided to launch a nuclear strike on Israel at 11:55am on Jan 20th 2009 EST. Iran repeatedly implored the Islamist community to retaliate to the Israeli response to Palesinian rocket attacks. Somehow a radical Islamic group seized power, and launched nuclear weapons.
Let's pretend that happened.
Who would have the powers to make war in that situation? Maybe it takes till 11:59 am EST till the white house learns of this. Pres. Bush is seated on the mall, and Obama is there, too. Obama does not yet wield the executive power to make war. Pelosi (speaker) and Byrd (pro tem) have to resign to gain the reigns of executive power.
Condie Rice was the only one who could have used the executive powers to retaliate in this case. She was the first black person to hold the reigns of executive power.

Posted by: T Doffing | Jan 21, 2009 12:16:31 AM

Nope. Biden already had been sworn in as VP by 11:58 or so.

Posted by: Howard Wasserman | Jan 21, 2009 7:27:02 AM

I don't understand the whole "he's the President but cannot exercise executive power" argument. If he can't exercise executive power, is he really the President? It seems to be he's either the President or he isn't.

Posted by: Mike | Jan 21, 2009 11:31:56 AM

The reason this issue is so important now is that Obama never actually took the Oath as prescribed by Article II, Section 1 of the Constitution. Obama changed the order of the words around, changing its meaning.

Thus, as a constitutional matter, it is unlikely Obama has authority to execute the functions of his office (although he is in fact President), unless and until he takes the constitutionally prescribed Oath.

For more detail, I made some detailed posts on Volokh here: http://volokh.com/posts/1232487862.shtml#520495 . If there is interest I can repost the reasoning here.

Posted by: man from mars | Jan 21, 2009 3:57:23 PM

Anyway, let me recapitulate why Obama did not fulfill the requirements of Article II, Section 1, which states:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—‘‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’’


In contrast to this Constitutional Oath, Obama's Oath moved the word "faithfully" to after "United States" so that Obama's Oath changed the boldface portions above to:

I will execute the Office of President of the United Sates faithfully ....

There are three reasons Obama's Oath does not fulfill the requirement of Article 2, Section 1:

Reason number 1. The Constitution requires that the Oath be administered using the exact words, in the exact order, it specifies. Other oaths in the constitution, by contrast, do not use quotations marks - only in Article 2, Section 1, are quotation marks used. For example, the Oath required of judges, Congressmen, and Cabinet Members in Article VI, clause 3, only requires that they swear to "support the Constitution" - no quotation marks or specific wording is required. Only here is this required. (The exact wording was proposed by Madison, who won a debate with James Wilson - Wilson argued the general Oaths provision was enough, but Madison insisted on the exact wording).

Reason number 2. Obama's Oath deprecates the importance of "faithful" execution in comparison with the Constitution's Oath. In the Constitution's phrasing, "faithfully" comes first; in Obama's phrasing, it comes last in the clause, relegated to the middle of the full Oath. Thus, the Constitution makes faithfulness paramount; Obama makes execution paramound.

Reason number 3. The wording of the Constitution's Oath links to the Take Care Clause, that the President must "faithfully execute" the Laws. This linkage is why some Presidents argued the Oath grants the President the Executive Review Power. But Obama's Oath weakens that link because, by not using the phrase "faithfully execute," Obama's Oath uses different language than in the Take Care clause.

To be "faithful" to the letter and spirit of Article 2, Section 1, Obama must swear or affirm using the language of that section of the Constitution. Unless and until he does, he has not fulfilled his Constitutional requirements, either of Article II, Section 1 or of the Take Care clause.

Posted by: man from mars | Jan 21, 2009 4:15:48 PM

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