Joseph Robinette Biden: Our New President

If Professor Ken Katkin's analysis here is correct, then Condoleezza Rice was the interim president from 12:00 to about 12:01.

(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.

Although Volokh thinks the analysis is rendered "moot" by the discovery that Joe Biden took the oath of office before 12:00 P.M., it is not; it actually implies that Biden was the acting president before Obama was sworn in. (Although Barack Obama was at the time and still is the president under the 20th Amendment to the Constitution, he had not yet assumed the powers of the office.)

Fine. Joe Biden was the acting president, but as soon as Obama swore, he acquired the powers of the presidency. Right? Wrong. In fact, Obama never actually swore the oath of office. What he said, confirmed by video footage, was this:

I, Barack Hussein Obama, do solemnly swear that I will execute the Office of President of the United States faithfully, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

To paraphrase Bill O'Reilly, "I don't know what that is, I've never seen that." What the Constitution requires is this:

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.

The word "faithfully" must precede "execute" for the oath to be valid. Therefore, Barack Hussein Obama does not currently have the powers of the president; rather, Joseph Robinette Biden does. Until Obama recites the oath correctly, Biden is acting president.

Hail to the Chief!