Posted by Eugene Volokh:
The First African-American President?
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232484721
Prof. Ken Katkin writes, though with the preface that this is "just
for fun":
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.
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?
See also the [1]Washington City Paper blog, which first blogged Prof.
Katkin's analysis (though please note that I have Prof. Katkin's
permission to reprint his thoughts). To be sure, I think Orin Kerr is
right that under the Twentieth Amendment that "the terms of [the
incoming President and Vice President] shall then begin" when the
outgoing pair's "end at noon on the 20th day of January," so Pres.
Obama was probably President starting at noon, even before the oath
was taken. But Prof. Katkin's analysis is more fun.
References
1.
http://www.washingtoncitypaper.com/blogs/citydesk/2009/01/20/remember-when-biden-was-president/
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