We dems had a choice. First Black POTUS or First Chick POTUS. For about a minute yesterday, we may have gotten both in the person of SECSTATE Condi Rice. [Spoiler alert: Condi was president after Bush and Cheney ceased to be POTUS and PUREEVIL (at least in office) at noon but before Biden was sworn in at 12:01. Here's the explanation: (HT City Paper)
(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 . . . ”
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
(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 KatkinProfessor of LawSalmon P. Chase College of
Law556 Nunn HallNorthern Kentucky UniversityHighland Heights, KY 41099
Clearly, this does not matter, but it is nonetheless interesting.