President for Ten Minutes

During a chat I had this afternoon, someone brought up an interesting situation to contemplate. The Presidency of George Bush fils ended today at noon EST, but Mr. Obama wasn’t sworn in until 12:10. Who then, the question was, President during those ten minutes.

One mildly unsatisfactory answer is Ms. Pelosi. If there is neither a President nor Vice President, then the duty falls to the Speaker of the House.

An even less satisfactory answer is Mr. Biden. The way that was explained, he was sworn in at 11:58. I find it unsatisfactory for two reasons. The most important to me is that after conjuring up this inter-administration gap, this closes it before it started. The second reason follows from what I think the best answer is.

The best answer to my mind is the simplest: no one. The office doesn’t magically fall to the next person in line, they actually have to be sworn in. When Mr. Kennedy was murdered, there was a short gap between his death and Mr. Johnson being sworn in and during that gap, there was no President. It’s the swearing in that makes the President. Similarly, in the event that an election gets thrown into the House and they didn’t decide until the 21st, there’d be no President for that day.

If there was indeed a gap (I could argue there was none), the person to whom the office fell was unequivocally Mr. Obama. He was at the time President-Elect. Even if Mr. Biden were somehow actually Veep, the obvious President-to-be is the President-Elect. Of course, this is also why the answer of Ms. Pelosi is unsatisfying. Even if we’re running the Executive like a Swiss railway, we know who the incumbent executives are.

Nonetheless, it’s fun to muse over. Feel free to spin your own argument for whomever.

The clever reader may also note that I said “today” despite it being past midnight server time. I have a personal rule that it’s still today until one goes to bed; it’s still night until one has breakfast; it’s still morning until one has lunch. And besides, it’s still the 20th in Hawaii, the President’s home state.

11 thoughts on “President for Ten Minutes

  1. Why wouldn’t it be George Bush? Is there an official swearing out ceremony or something that divests him of the office, or does the swearing in of the new president overwrite the old’s authority?

  2. The clearly wrong answer is Bush 43.
    According to the XXth amendment – http://www.usconstitution.net/const.html#Am20, the term of the President ends at noon on the 20th of January. The amendment makes no reference to the oath of office.
    At the stroke of noon during the ceremony yesterday (while Perlman was playing), Wolf Blitzer informed us that Barack Obama had just become president. The President-Elect becomes President at the stroke of noon on inauguration day. The oath of office is a ceremony, and the Presidency does in fact transfer magically. You wouldn’t want it any other way. You can’t not have a President.
    That doesn’t mean that the oath is purely ceremonial. It’s required by the Constitution.
    Article II states that the President shall take the oath (that Chief Justice Roberts botched yesterday)
    “Before he enter on the Execution of his Office…” It doesn’t say that the President-Elect should, implying that the PE is already P when he takes the oath, and that he must take the oath before he takes on his responsibilities.

  3. One of the commentators (it was either CNN or MSNBC) said that the current president and the former president had decided (for reasons unstated) that if there was an “emergency” the president “pro-tem” would be the secretary of defence, Mr. Gates. I had always understood that the constitution stated that the succession passed to the secretaries, in the order in which the office was created. But I guess the fact that some of the secretaries had not yet been approved by Congress left a gap.

  4. Gates was the succession strategy if a bomb went off while Obama, Biden, and Pelosi were all in the same place. If Obama couldn’t make it to the Inauguration for any reason, Biden would automatically become President. Amendment XX, again.
    Since Gates was already in the Cabinet, he didn’t need confirmation. The Secretary of State is ahead of Defense in the succession, but Hillary was not yet confirmed.
    Again, by the plain words in the XXth Amendment Bush stopped being President at noon, end of story. The agreement concerned sending Gates out of town to a safe location ahead of time.

  5. There was no gap. Bush stopped being President at noon and Obama became President at noon.
    The oath is required as part of Obama taking office, but is mostly ceremonial in nature. Which is why Obama is still President, despite the screw-ups when reciting the oath.
    If Obama had taken the oath at 5:00pm, again there would be no gap since he had already became President at noon. And if some crisis were to befall the nation at 2:00pm, Obama would be seen as the leader who would have control of the Presidency. I don’t think any Supreme Court justice would interpret the constitution to mean that Obama was not in charge from noon until he took the oath because it would be silly, and in the event of a crisis, not in the best interests of the country to bicker over such a formality. Also, the intent of the founding fathers needs to be taken into consideration and I cannot imagine they would have intended to create a gap.
    And even if you want to take a strict interpretation of “Before he enter on the Execution of his Office…”, then the oath must simply be taken before any of his actions are made as President. Simply put, how many Presidential decisions were made between 12:00 and 12:10? None.

  6. Nick,
    There were two Presidential decisions: (1) wait for the editor of the Harvard Law review to get the oath of office right (1a) boy I’m glad I voted against that guy and (2) OMG we better get on with it.

  7. According to CNN, even though Obama did not take the oath at 12:00 he was still considered the President of the United States. Thus, CNN reported that you do not have to be sworn in to be President.

  8. having worked for the Army for many years and having seen people administer the oath, I would say there is a good reason why you don’t think you’ll remember the words, no matter how often you think you rehearsed it. Maybe the Justice can’t read and that’s why he decided to recite it from memory. Luckily, our president can read. And obviously had rehearsed.

  9. I believe Nick has it right. At 12:00 noon, one Presidency ends and the second begins. The first act that the President must make is the taking of the oath.
    But that’s just what I believe. As with anything else in our Constitutional Common Law system, there is no answer until a court says there is. There may be a presumed answer, but until a court rules on a subject it is not determined. It’s like Quantum Physics. Until observation/ruling collapses the wave form, the state is indeterminate.
    But just because there is a Common Law Uncertainty Principle doesn’t mean I can’t have an opinion and make a prediction.

  10. I would certainly *hope* that Nick is correct. But the counter-argument against this is that if what you say is true, then why are we being all concerned about it? Why did Messrs. Roberts and Obama re-do the Oath if the Oath is nothing?
    That couter-argument is that if the Chief Justice and the President agreed together that a reasonable person might question authority without the Oath, then a reasonable person can certainly debate it. In short, it’s debatable because we’re debating.

  11. The explanation I had found for redoing the oath was that it was purely preventive. All parties involved had agreed that the botched oath was acceptable. But, given that the lawsuits opposing Obama’s election based on his dual citizenship at birth (despite the fact that “natural born citizen” has never been precisely defined/interpreted by the courts), they felt it would be better to redo the oath to prevent anyone from wasting the courts’ time to dismiss any potential lawsuit.
    So, in the end, much ado about nothing, but fun to debate…

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