Legal Commentary

At noon, EST, by operation of the Twentieth Amendment, George W. Bush's term as President of the United States ended. At that moment, Yo-Yo Ma and Itzhak Perlman were performing (the piece that was, by the way, my wedding processional). It was not until 12:04 p.m. that Chief Justice Roberts and Barack Obama stood up, Roberts asked "Are you prepared to take the oath, Senator?", Obama answered "I am," and they began (by the way, it was Roberts who read the oath wrong initially).

So who was President between noon and 12:04? The Twentieth Amendment states, referring to the noon end of the current President's term, that "the terms of their successors shall then begin." This seems to suggest that the transition happened at noon and the oath is a formality. And if you look at the blog of the re-designed White House web site, it announced Obama-issued proclamations time-stamped 12:01 p.m. And CNN flashed on the screen that Obama had become President as of noon.

But the oath is prescribed in Article II to be taken "[b]efore he enter on the Execution of his Office." Does this mean the oath is necessary for someone to become President? Or does it mean that Obama was President but could not do anything until he had taken the oath? If so, why did Roberts call him Senator before issuing the oath and not refer to him as "Mr. President" until after the oath was completed? And does all this mean that Joe Biden was acting president for four minutes? And what of Robert Gates?

Finally, what are the odds that someone files a lawsuit arguing that Obama did not properly take the constitutionally prescribed oath of office?

Update, Tuesday, 6:15 p.m.:

Orin Kerr and Mike Dorf weigh in. And the prevailing view seems to be that he became President under the Twentieth Amendment at noon and had to take the oath before he could "enter on the execution" of his office--in other words, before he could wield any executive power. And I think I agree with that, otherwise this all becomes unnecessarily complex.

This reading also has some historical support. As Sonja noted in the comments, there was 90-minute gap between President Kennedy's death and Johnson taking the Oath on Air Force One (with Jackie Kennedy famously standing alongside him, still wearing the bloodied clothes from the assassination). And apparently the first Congress believed George Washington became President on March 4, 1789 (the day the first Congress attempted to convene), although he did not take the Oath until April 30.

Finally, one other interesting tidbit (courtesy of my FIU colleague Tom Baker, the real con law expert here): Presidents Jackson, Lincoln, and (Andrew) Johnson at various points argued that the Oath was not even necessary to exercise presidential power (that came with the job), but that the Oath gave them additional powers, namely in the realm of constitutional interpretation, beyond ordinary executive power they would have absent the Oath.

Oh, one last thing: From what I am reading, it is beginning to sound like whom to blame for the botched oath is a political litmus test. But I give Orin the final word on this.