First Black President or First Woman President? How About Both?

I am a nerd and a lawyer, that alarming combination known in chemistry circles to spark the creation of eye-glaze, while simultaneously known in the medical community to prompt the seemingly contradictory involuntary eye-roll. Despite the potential for ocular disturbance, let us proceed to the nit-picking!

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 . . . ”
(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
(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.

1 comment:

Ari said...

The beginning of Sec. 1 of the 20th Amendment does provide that the presidential term ends at noon on January 20. However, the end of Sec. 1 also provides that "the terms of their successors shall then begin." Thus, it seems like Obama automatically became president at noon on Jan. 20.

Now, regarding the lack of an oath, there are 2 possibilities:

(1) Until the oath was taken, Obama was president, but he was in continuous violation of his constitutional duty to take the required oath. In this scenario, the oath, while mandatory, is not a condition precedent to assumption of office. I think this is probably the correct view.

(2) Until the oath was taken, clearly Obama was the "president," under Sec. 1 of the 20th Amendment, but perhaps he was not yet fit to execute the duties of office. According to Sec. 1 of Article II, "[b]efore he enter on the Execution of his Office, he shall take the following Oath or Affirmation...." Thus, the most that Article II does is establish that the execution of the office is contingent on taking the oath (although it is still unclear whether the oath is a condition precedent even for this aspect). Now, if Obama was the "president" but was not entitled to execute the duties of the office, then either (a) no one was entitled to execute the duties of the office, or (b) someone else was entitled to execute the duties of the office, perhaps Condi, as suggested by Katkin, but, in any event, Condi was not the "president" -- she was at most the "acting president." The 25th amendment does not apply, since neither did the president (Sec. 3) nor the VP and a majority of the cabinet (Sec. 4) communicate a declaration of inability to Congress. Sec. 1 of the 25th Amendment does not apply because the president neither died nor resigned. Thus, the controlling constitutional provison would be Article II, sec. 1, clause 6, providing that "Congress may by Law provide for the Case of ... Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed." So, it seems that due to the lack of resignation by either of the congressional leaders, such responsibilites would indeed have fallen on Condaleeza Rice as acting president.

In any case, I still maintain that there is no reason to believe that the oath is a condition precedent to assumption of the duties of president, and thus, Obama became president at noon.

Of course, another interesting question is what time zone to use -- the time zone of the capital, of the outgoing president, or of the incoming president. Thus, if Bush had been in Hawaii at noon EST, and Obama had been in London at that time, would the office transfer at noon EST, at 5pm EST, or at 7am EST?