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Is Barack Obama the first black president?

According to one law professor, the answer may be no...

Ken Katkin of the Salmon P. Chase School of Law at Northern Kentucky University tells the Washington City Paper that for one minute, Condoleeza Rice was acting president. Here's a sketch of his argument:

(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).
...
(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 don't think he'sright, but it's the type of question that causes con law geeks to toss and turn at night. What do you think?

Full post as published by Supreme Dicta on January 23, 2009 (boomark / email).