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Wednesday, January 20, 2021

Maybe the executive is not so unitary (Updated)

Twelve years ago almost to the minute, I wondered about the four-minute gap between noon and Barack Obama taking the oath of office and whether he was President in the intervening four minutes. That they screwed up the oath and redid it lent further oxygen to the question of when a new presidential term begins--at noon on January 20th or upon taking the oath of office.

Today we had the opposite: Biden took the oath at 11:53 (ed: 11:48), twelve minutes before the Constitution says Trump's term ended and the term of his successor began, after which the Chief said, "Congratulations, Mr. President." The prevailing view in 2009 was that he took office at noon and the oath was something between a formality and a precondition to executing the powers of the office held. And I suppose there is nothing inherently wrong with taking an oath prior to taking office. So Biden took the oath and for seven minutes Trump remained President. But then was the Chief wrong to congratulate "Mr. President?"

On the other hand, if the oath makes someone President, then in 2009 we had no President for four minutes (or Biden, who had been sworn as VP at 11:58, was acting president for four minutes). And today we had two Presidents for about seven ten minutes. Too bad Trump did not administer the pardon to Jeanine Pirro's ex at 11:58.

Does anyone know why they altered the timing of the ceremony, to administer the oath ahead of noon?

Updated: The Washington Post offers a brief story with commentary from Jonathan Turley (GW) and Bobby Chesney (Texas). Bobby offers a good reconciliation: The oath class requires the oath "before" a person can take office, but does not explain how long before. Whether intentional, Bobby argues that doing it this way is preferable to the 2009 situation in which you create a gap in which no one is President (or no one is able to exercise the powers of the presidency).

Further Update: Someone on the Conlawprofs listserv argues that if the oath can be administered before the office is vacant, it might be validate for the President to nominate and the Senate to confirm a SCOTUS nominee before the seat becomes vacant, then hold the unsigned commission until the vacancy occurs. Same principle at work.

Posted by Howard Wasserman on January 20, 2021 at 01:24 PM in Constitutional thoughts, Howard Wasserman | Permalink


Is this best settled by the text of the relevant provision itself: "Before he enter on the execution of his office, he shall take the following oath or affirmation[.]" The 20th Amendment only prescribes when he takes office, not how he takes office. And the anticipatory oath is likely valid for that reason, altho it's probably better form to do it after 12 rather than before since the 20th Amendment also makes it clear that a term ends at noon and not before.

This is why the four-minute gap is illusory since Obama did not exercise any powers before he took the oath, and I'm not so sure the gaffe by Roberts vitiated the first one. In any event, there are centuries of case law addressing these cases by treating them as de facto officers and permitting them to qualify as de jure.

Posted by: Jas. Madison | Jan 20, 2021 3:27:29 PM

Presidents used to give the speech first and take the oath afterwards. So they probably didn't (back then) take the oath until well after Noon.

Posted by: Gerard | Jan 20, 2021 2:25:59 PM

Not based on inside information, but there was some risk that a terrorist incident at precisely noon would disrupt the proceedings one way or another, most likely by requiring evacuation of the principals into undisclosed locations. Best to get the formalities out of the way before that.

Posted by: arthur | Jan 20, 2021 2:13:09 PM

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