In an inauguration, there are several minutes separating the VPOTUS swearing-in and the POTUS swearing-in. What if an emergency requiring both of their involvements occurs during that time? Would the outgoing President work with the incoming VP?
Technically, I believe Trump and Pence are still in power, even after Harris and Biden were sworn in, until 12:noon. Swearing-in doesn’t transfer the power, the time on the clock does.
Ok, that makes a lot of sense. It just felt really weird after Harris was sworn in but Biden wasn’t yet.
The 20th Amendment says:
So the previous President and Vice President are in office until noon. The terms of the new President and Vice President begin simultaneously once the offices are vacant, not when they take the oath.
The term of the new President begins at noon, regardless of whether he has yet taken the oath. The Constitution says he must take the oath “before he enter on the Execution of his Office,” not that he has to take it after noon. I presume it’s given before noon to ensure continuity of authority.
Barack Obama’s inauguration in 2008 was running behind schedule, and he ended up taking the oath somewhat late. Nonetheless, he became President at exactly noon.
Another oddity was that Obama and the Chief Justice mucked up the wording of the oath, so they had a do-over the next day.
Yet, it’s not at all clear that they had to re-do Obama’s oath. Nobody (probably) doubted that he was President and Commander-in-Chief at Noon. But they did it over “just to be sure”.
What if the Russkies has attacked us that afternoon? Obama would have to issue some military orders, certainly? Would the military have been authorized to follow those orders?
The term of the previous President ended at exactly noon. Obama only ‘entered on the execution of his Office’ after his delayed oath. Presumably, effective executive government was in the control of the next in line (was the VP oath also delayed?) until O was able to assume command.
There’s a distinction between being required to take an oath before exercising your powers as president and being unable to exercise your powers as president until you have taken the oath. The first doesn’t necessarily imply the second. A president who exercises one of his powers before taking the oath might be guilty of infringing the oath-first requirement, but it’s not inevitable that a consequence would be the invalidity or nullification of the exercise of the power.
I’m not aware of any crime of ‘pretending to be the President’ ? If a person who is not yet the president gives an order, and it is obeyed, that is the problem of the person who obeyed and the people affected.
Did you have a particular power in mind?
I didn’t say it would be a crime; just an infringement of the constitutional requirement.
For a hypothetical example, suppose the President dies suddenly. The VP immediately becomes President (by virtue of the 25th amendment) and becomes subject to the requirement to take the oath. However a person authorised by law to administer oaths may not be immediately available, so the taking of the oath may be deferred for a short time. (In LBJ’s case, for instance, about 2 hours passed between JFK being declared dead and LBJ taking the oath before a hastily-summoned Federal District Judge.)
Conceivably, the cirumstances which led to the sudden death of the President might also create a need for urgent executive action of the kind that only the President can authorise or order. Or, the need for action of that kind might arise coincidentally. Either way, the new President does what needs to be done and subsequently takes the oath. The validity or efficacy of what he has done, or of other actions taken in reliance on what he has done, might in due course come before the courts.
To lay to rest, so far as possible, any doubts I think that if this situation did arise, a President who had acted in advance of his oath would, after taking his oath, repeat or reaffirm what he had already done. But that doesn’t dispose of the question in principle; if it should happen that the president exercises any of his powers before he has an opportunity to take the oath, is the purported exercise null and void? Are others, who acted in reliance on the purported exercise, protected? Etc, etc. The Constitution doesn’t say so, one way or the other, and the courts haven’t had an opportunity to rule on the question because people have contrived to ensure that it hasn’t arisen in practice.
What particular executive action do you have in mind?
The word you used was “guilty”.
Does it matter?
You can be guilty of things other than crimes. Nitpicking, for example.
The president being killed in an ongoing terrorist attack seems like an obvious situation in which executive action such as ordering troops into action might be required immediately.
Right. And is that a process that is limited to only the president? Or can, perhaps, the Secretary of Defence order it, on the advice of a civilian?
And if a Person Who Is Not The President (NTPOTUS) makes a direction, is he ‘guilty’ of anything? I could direct the Chiefs of Staff to declare war: since I’m not the President, any action they take is on their own responsibility.
Unless you can assign some meaning to the phrase ‘guilty’ other than ‘because I say so’, that’s not a nit: it’s a beam in your eye.
Only Congress can declare war. Also, this whole discussion is idiotic.
What you literally can do is meaningless in the context of what one is legally permitted to do. Yeah, people take shortcuts in emergencies sometimes. That doesn’t mean that you ignore things at other times. There is a reason that the president- and vice president-elect are sworn in before their terms begin, and the reason has been made clear by other posters already.
I’ve read here that he really is the president before he’s sworn in, he’s guilty of something if he acts at the president, but he really is the president, but he’ll get away with it anyway.
It’s not nitpicking to say that is just garbage.
I present a simple alternative: he’s not the President until he’s sworn in.
There is nothing in the constitution that requires there to be a president at all times. There is nothing he is guilty of by virtue of not being the president. Nobody has been able to describe a scenario in which it matters that there is no president.
Nobody has been able to assign a meaning to ‘guilty’. Nobody has been willing to describe a scenario. I suggest that is because there is no guilt, and there is no scenario.
I have been perfectly willing to listen to anybody who is willing to suggest in any way what being a president who is not sworn in means. And so far I’ve got nothing. It kinda looks like there is nothing.
You are mistaken.
The 20th amendment is in fact quite explicit on this topic:
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.
The rest of your post is incoherent.
Emphasizing this.
A person becomes president when their term starts, which is when their predecessor’s term ends (by Constitutional time limit, or by removal by Congress, or by resignation, or by death).
Taking the oath of office does not cause one to be president. Being president causes one to take the oath of office. The direction of causality is important. People get confused because the oath of office is given near when a president’s term starts. The oath of office is a requirement of being president, but the timing of it is not mandated.
Only because of the postings I was replying too.
I certainly agree that discourse has been incoherent.