Posted by Orin Kerr:
Who Was President from 12:00 to 12:10?:
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232483177
[1]Howard Wasserman asks the question. I haven't looked closely at the
issue, but I would think the answer is that Obama was President at
noon under Section 1 of the 20th Amendment:
The terms of the President and Vice President shall end at noon on
the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years in
which such terms would have ended if this article had not been
ratified; and the terms of their successors shall then begin.
It is true that Article II, Section 1 states the following:
Before he enter on the execution of his office, he shall take the
following oath or affirmation:--"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 question is, does Article II, Section 1 impose a condition on
becoming President, or is it a constitutional duty that a person who
has already become President must satisfy before he exercizes the
executive power? As a textual matter, I would think the latter: Obama
became the President at noon, but he was supposed to (and did) take
the oath before exercising his executive duties. That's my initial
sense of it, at least.
References
1.
http://prawfsblawg.blogs.com/prawfsblawg/2009/01/who-was-president-while-perlman-fiddled.html
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