I noticed that Mike Pence took the oath of office at 11:55am on Inauguration Day. However, Joe Biden’s term (as per the Twentieth Amendment) technically did not end until noon.
Can a person legally take the Oath of Office before his/her term begins?
If he can, who, technically, was the Vice President during those five minutes?
And, along the same lines, if something were to (God forbid) happen to the President during those five minutes, which person would technically have become President until the beginning of the next President’s term?
The Constitution requires that the President and VP take the oath of office “Before he enter on the Execution of his Office.” The exact time that the presidential and vice-presidential terms begin and end is set by Congress, and the president-elect and vice president-elect become prez and VP at that time. The oath is only necessary before they exercise any of their powers, and it doesn’t matter if they take it ahead of time or later.
Joe Biden was Vice President until he wasn’t anymore.
Biden would be President for five minutes, until noon, at which point Trump would become President and Pence VP. They would still need to complete their oaths before executing any presidential or vice-presidential powers.
So, to summarize: the terms begin and end when Congress says. The time you take the oath doesn’t matter, as long as it’s before you try to do anything presidential.
As to point #3, is Biden technically president if he doesn’t take the oath? I don’t know where he was at that precise time so it might have taken more than 5 minutes to get the right people together to administer the oath.
No. Section 1 of the 25th Amendment provides that “*n case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” Since Obama was not removed from office and did not die or resign, Biden would not have been president.
As we just discussed in this thread, Trump’s and Pence’s terms began at noon. They could not execute their powers until they took their oaths, but that’s a different thing.
Having the VP take the oath just before the President is a symbolic representation that the line of succession will be unbroken. If the new President were to be hit by lightning immediately after taking the oath, there’s a duly elected and officially sworn Vice President ready to take over.
Of course in reality, one term ends and the next begins precisely at noon.
But I was responding to a post in which hypothetically Obama was no longer fit (alive) during the last few minutes of his administration, such as from an aneurysm or fame seeker. If so, would Biden have been sworn in as 45th president for a 15 minute term?
But, as a practical matter, if, let’s say, Russian paratroopers had descended on the capitol and killed the President and Biden yelled to the generals and honor guards in attendance “Go get them! Kill them!” would they have obeyed? Could they have gotten into trouble for obeying?
I would hope to think that if a foreign military operation descended on a state event and executed the sitting president, the military officials in attendance would not need a directive from their new superior to respond. Their oath is to the constitution not the president at the moment. Thus they could lethally respond under the justification (as if one were really needed) of protecting the continuity of succession if for nothing else. The successor president would not be handicapped by not having taken an oath.
I guess I should have anticipated that people would pick apart the details of the hypothetical.
So, let’s say the President tragically died. An emergency requiring prompt action of the President arose. Not having had time to take an oath, the Vice President (who is now President) makes an emergency decision. In practice, would anyone hesitate to carry out his decision?
In practice, almost certainly not … although given that this is a hypothetical, I’m sure that the creative minds here could produce a zillion scenarios in which they wouldn’t. That’s the problem with hypotheticals like this. Everything about them depends on the exact specifics, which are never given and really can’t be.
In reality, the best case we have is Lyndon Johnson, who insisted on taking the oath with what was considered at the time unseemly haste. Looking back at it, I think he made the right move. Why allow any doubts? Today, any new Pres in that position would get oathed equally quickly.
Coolidge is another example. He took the oath as soon as he heard that Harding was dead.
Coolidge was staying with his father at the latter’s cabin in the woods. A messenger arrived late at night with the news about Harding.
Coolidge’a father, a JP, immediately administered the oath to Coolidge. It was around midnight. Coolidge, setting the phlegmatic tone of his administration, then went to bed and slept until his normal wake-up time.
(He later re-took the oath in front of a federal judge, because it was not clear if a lowly state JP could swear in the President.)
But consider the case of Harry Truman. He was in Washington when Roosevelt died. The war required constant decision making, one of few true minute by minute crises we’ve had before the modern instant communication era.
Yet he waited until he could summon the high echelon of Washington bigwigs, including the Chief Justice, to the White House. He didn’t take the oath for more than two hours after getting the word from Eleanor. He had every possible bit of advice available to him about the legalities of the act. I’ve never seen anyone say that he flubbed it by waiting.
That’s why it’s so hard to answer these questions. Nothing is in writing and historical precedent is contradictory.