I'm not an attorney but I think based on this phrase Joe Biden was technically acting President

[ddeclue]

for about a day until the oath could be retaken.

"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation"

It seems to be a mandatory requirement to me.

:shrug:

[tigereye]

1. not according to Nina Totenburg- apparently presidents often simply say

"I do" as a response, or something to that effect.

[Lex]

26. Exactly.

The rest is foolishness.

[tigereye]

40. it was moot since they did it over anyway...

weird how everything is a tempest in a teapot. I hate the cable news maw that has to be endlessly fed. :(

[Gormy Cuss]

2. Biden missed his chance!

;-)

That's why it was prudent for Obama to be sworn again today.

[ddeclue]

18. On the other hand the 25th Amendment is very messy

and I think either Obama would have had to have signed over the office temporarily or a majority of the cabinet (not yet sworn in for the most part at that point) would have had to have declared Obama as being incapacitated (which if his powers weren't yet attached until he took the oath then he would have technically been) before Biden would be acting President.

I don't think even the 25th Amendment is the final solution to problems of succession and either some court rulings will have to be made at some point in the future, or there will need to be another amendment passed to further clarify how succession works and these nit picky issues like whether the President's powers attach prior to his taking of the oath or not.

:)

[elleng]

20. The 25th amendment is NOT RELEVANT to the present situation.

Amendment 25 - Presidential Disability and Succession

http://www.usconstitution.net/xconst_Am25.html

[ddeclue]

21. Um yeah it is (was)...

The operative word regarding the taking of the oath is "Execution", i.e. the President's powers don't attach until he takes the oath.

In other words, Obama became President in name at noon on Jan 20, 2009 with or without the oath but his powers only attach upon taking the oath.

If the President has no powers, then he is incapacitated, not physically but legally. Therefore the incapacitation would trigger the 25th Amendment.

Doug D.

[elleng]

22. Where do you come up with this interpretation of 'Execution?'

.

[ddeclue]

24. He is the Chief Executive

His job is to execute the powers granted to him in Article II Section 2.

If "Execution" in the oath clause is indeed the operative word then he can't execute any powers until he has sworn the oath. He holds the office but has no powers in this scenario.

[elleng]

28. In my opinion, this is a misstatement

of the intention and meaning of what you call 'the oath clause' of Article II, Section 1, of the Constitution: '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."'

It may be, as you suggest, that 'execution' is not the 'operative word' in the oath clause; maybe its he 'shall take '

Judges and lawyers recognize that missing the forest for the trees is a common mistake people make, and they try not to grant greater weight to words or their placement than they are rightly due in a particular context.

FYI, I am a lawyer.

[Kurt_and_Hunter]

3. You'd want to read it in light of the line of succession amendment.

I don't have a theory... only noting that the amendments are as much a part of the constitution as anything, and the execution of office would precede the oath in the nuclear war scenarios that the succession amendment has in mind.

[ddeclue]

4. the 25th Amendment is why I say Biden would be acting President..

[Kurt_and_Hunter]

7. But Biden hasn't taken the presidential oath either.

I see what you're saying, that Biden might have a better claim since he's the duly sworn VP, but you cannot be an acting anything if you cannot enter in execution of the office... execution is what makes you acting. You can act.

Goose/Gander.

(I'm not arguing, just musing.)

[ddeclue]

17. The ACTING President assumes the powers of the Presidency

but not the office. This is a temporary assumption of the powers and I don't think there is any requirement for them to take the oath of office to do so. Joe Biden's oath as Vice President would be sufficient for this purpose.

Doug D.

[sohndrsmith]

5. Per the constitution, the President-elect automatically becomes

President at noon on the 20th of January. The oath is required, but Obama was President at noon anyway.

[ddeclue]

11. I think the operative word is EXECUTION...

Which implies that the powers of the Presidency are connected to his taking the oath - i.e. he was President in name only without the powers until he could take the oath. That would make him "incapacitated" as President and his powers under the 25th Amendment would have fallen to Joe Biden.

[elleng]

6. U.S. Constitution READ SECTION 1.

Amendment XX

Section 1. 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.


Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.


Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.


Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

[Kurt_and_Hunter]

8. "or if the President elect shall have failed to qualify"

The oath is a qualification since it shall precede execution of office.

So Joe Biden was acting President unless, and this is a BIG unless, unless the irregularity in the oath was of no consequence, which was the case.

The SCOTUS could (and would) find that the defect in the oath was insufficient to invalidate it.

Bear in mind, the original Constitution is full of weird spellings and such that were never amended but are taken today to mean what they meant at the time. There's a little wiggle room, and whether an adverb precedes or follows a verb is probably insufficient to invalidate an oath of office.

For that matter, Obama could say Biden gave him the oath in the limo... there's no prescribed method of checking.

[WeDidIt]

10. DAMNED STRAIGHT The SCOTUS would find

the defect in the oath was insufficient to invalidate it.

One of their own was the reason it was flubbed!

[ddeclue]

16. They would probably just reject it on standing grounds

because it would seem that only Joe Biden or a majority of the cabinet would have any standing to bring such a case anyways. Some random citizen off the street isn't in the line of succession so they wouldn't have standing.

As I said, it's all just silly splitting hairs but I think it's kind of fun that Joe Biden may have technically gotten to be Acting President for about a day given that he originally ran to be President last year before ending up as Veep.

That's all..

:)

[ddeclue]

12. As I said TECHNICALLY...

I really don't see Justice Roberts and his 8 friends voting to take such a case since he's at fault in the first place.

:)

[elleng]

13. read

'and the terms of their successors shall then begin.'

[ddeclue]

15. It's not that Obama wasn't President, it's more subtle...

it's that his powers (Article II, Section 2) wouldn't attach until he took the oath (the operative word being "Execution") so in effect he would be President in name only without the powers and thus "incapacitated" under the 25th Amendment thus making Joe Biden ACTING President but not actually the President.

It's a very technical argument and it would never really matter because the SCOTUS would laugh it off on standing grounds if someone besides Joe Biden or the Cabinet tried to bring it to them.

Doug D.

[ddeclue]

19. Is it clear that a judge or justice MUST administer the oath?

I know that it has always been done this way and when Presidents have died such as FDR or Kennedy that they found the nearest Federal judge to swear in the VP as President right away instead of waiting for the Chief Justice and a big ceremony.

Could just any Tom Dick or Harry off the street administer the oath?

:shrug:

[endarkenment]

36. no

[dansolo]

23. Obama affirmed the oath.

The requirement is that he had to "take the oath or affirmation". I believe that he did affirm the oath, even if his wording was slightly off, and since Roberts had corrected himself, it is technically satisfied.

[ddeclue]

25. I conceded that this was all a hyper technical nit pick in the OP...

why are you trying to ruin my angel on the head of a pin counting fun?

:rofl:

[NYC Liberal]

9. 20th Amendment superseded that:

"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."

And anyway, Biden didn't take the oath either. If he could be president without it, then so would Obama.

[ddeclue]

14. Um no the phrase I am referring to was NOT stricken by the 20th Amendment.

check www.usconstitution.net

And I didn't say that Biden was the actual President but rather he would TECHNICALLY have been ACTING President per the 25th Amendment - and Vice President Biden DID take his oath without any issues.

The theory is that the operative word is EXECUTION - i.e. President Obama indeed became President at 12 noon but his powers don't attach until he takes the oath. As such he was President in name only until the oath could be retaken and would in effect be "incapacitated" thereby triggering the 25th Amendment.

Of course all of this is "technical" as I can't see the SCOTUS actually taking any of it seriously as it was Justice Roberts who screwed up in the first place.

[NYC Liberal]

27. What was superseded was the requirement that the president

take the oath before he becomes president, not that he didn't need to take the oath. He still did, but even so he became president at noon oath or not.

The 25th Amendment only talks about a declared disability of the president by the majority of the cabinet. Not this situation. A president can only be declared incapacitated "Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office."

There is no "automatic" incapacitation. It must be declared by the cabinet.

Barack Obama was President of the United States at 12PM noon EST. Article 2 says "Before he enter on the Execution of his Office" -- Amendment 20 supersedes that by saying "The terms of the President and Vice President shall end at noon on the 20th day of January ... and the terms of their successors shall then begin".

[jzodda]

29. The kind of subtle arguments taking place in this thead is exactly why they re-did it.

Or the right wing wackos would come out of the wood work with lawsuits. This prevents any side show's from taking place before they start.

[smalll]

30. This can be a GOOD thing! If Obama actually became president a day late, then he slips out of the

"no-more-FDRS" amendment, and like LBJ, can complete this "incomplete" term, win re-election (as LBJ did in 1964) and THEN exercise the option (if he so wishes) to run for re-election AGAIN! (Keep in mind, LBJ had the right to do so, he just chose not to in '68. If we're going to be strict about this, we can have Obama win in '12 and '16 and have him in the White House through January 20th, 2021!)

[redstate_democrat]

31. You just caused about a hundred lurking freeper heads to explode.

:evilgrin:

[treestar]

33. Try that one on the freepers!

Man, that's a good one!!!

[ddeclue]

37. There's still a 10 year limit is there not?

[Shiver]

42. Not quite

That rule only applies if the incomplete term has less than two years left in it. That's the only reason LBJ was allowed to run in '64 and '68.

Nice try, though ;)

[treestar]

32. No, it doesn't have to be exact. Obama got all the words out

and made the pledge!

The law is not that technical! :banghead: Extreme technicality leads to injustice. Form over substance. The substance is more important than the form. Exalting form over substance is medieval and superstitious.
That is why the courts exist. Otherwise, we'd never need them, we'd just strictly apply the technicalities. People would then be jailed on executed over technicalities.

Law is an art, not a strict science. :banghead: for all the Americans who don't get that.

[LaydeeBug]

34. He took the oath again. nt

[endarkenment]

35. see the 20th amendment

[alcibiades_mystery]

38. ddeclue

The bitterest Clintonite of them all.

:rofl:

[ddeclue]

39. That's ridiculous...

I was an EDWARDS organizer in Central FL in 2007-2008 and when Edwards dropped out I became an Obama supporter. I was NEVER a Hillary fan - just ask anyone here.

:rofl:

[Garbo 2004]

41. Herbert Hoover was President although Chief Justice flubbed oath.

http://legaltimes.typepad.com/blt/2009/01/no-problems-with-todays-oath-at-the-supreme-court.html

[Jennicut]

43. Stupid John Roberts. Always bring index cards!

I'm glad Biden took a dig at him yesterday.