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The Volokh Conspiracy relays the legal analysis of one Professor Ken Katkin, who wonders in print who was president betwen the time President Bush’s term expired at noon on Tuesday, and President Obama took the oath of office late at 12:04. Its a thought experiment more than anything, but its a fun one.
(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.
With me? Now for the fun part.
Katkin goes on to explain that the Presidential Succession Act states that when the president and vice-president are no longer qualified to hold their offices, as President Bush and Vice President Cheney were not, first the Speaker of the House and then the President Pro Tempore of the Senate shall assume the presidency, “upon his resignation.” But since neither Nancy Pelosi nor Robert Byrd had resigned Congress, neither could become president.
(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.
Congratulations, Condoleezza Rice, our first African-American (Acting) President, and first female president too! Which, of course, makes President Barack Obama our second black President.
But hey, Barack, don’t get all down about it. You’re still the first socialist president. Good luck with that.