Yes, Biden is President . . . Just A Tad Premature

I thought that the Biden inauguration was one of the most beautiful and moving in my lifetime.  It was overwhelming to listen to Lady Gaga’s rendition of the national anthem, Garth Brooks’ version of Amazing Grace, and of course the incredible poem by Amanda Gorman. That is why being a law professor sometimes complicates everything.  It is like going to a powerful movie and fixating on the legal anomalies like when a character does something not allowed under the rules of evidence.  That moment came when Joe Biden took the oath and was declared president before noon.  I was called by reporters from the Washington Post and other media outlets to ask if Biden was truly president at that time. This will only be of interest to constitutional geeks and a few journalists but he was not the president at that time.  The President remained Donald Trump until noon under the 20th Amendment.

Biden was sworn in almost ten minutes before noon. That made the oath prospective, not transformative, in terms of his status.  Here is what the 20th Amendment states:

Section 1

The terms of the President and the 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 oath is required but it is not the act that makes Biden the next president. Article I states “Before he enters the Execution of his Office, he shall take the following Oath or Affirmation.”  Thus, he had to take the oath before “execution of this office.”  It does not bestow the office upon him.

Absent a resignation from Trump, he remained president at that time. So when Senator Amy Klobuchar said that she would be the first to call him “President Biden,” she may have been literally but not constitutionally correct.  She was not alone. The Chief Justice addressed Biden as “Mr. President” following the oath. As a constitutional matter, the Chief Justice was also wrong. Otherwise, someone could claim the powers of the presidency at any time between the election and noon on Inauguration Day. For example, if Biden took the oath on January 3, it would not result in his taking office. The same is true if he took the oath after the certification in Congress on January 6th.  Technically, Biden took a prospective oath in that sense.

The does not make Joe Biden the “Premature President” any more than President John Tyler was really the “Accidental President.” He is our president . . . as of noon today. There is nothing untoward in taking the oath as a prospective matter but it merely allows him to execute his powers after noon has passed. Thus, this was not a matter for the type of redo after Chief Justice John Roberts garbled the oath with President Barack Obama.

None of this matters.  By the time I wrote about this, the issue had passed into history as a mere constitutional curiosity.

104 thoughts on “Yes, Biden is President . . . Just A Tad Premature”

  1. How does a person find a way to support those who are pushing an agenda that is the diametrical opposite of his sincerely held beieifs?

    The Democrats are pushing Amnesty for Millions and Millions of Illegal Aliens….the second time they have done that….remember the Reagan Compromise on that and how it turned out?

    Those of us that believe in “Secure Borders” are now supposed to clap Biden on the Back and support his undoing of border security, granting amnesty to illegals, and easing Immigration laws?

    Sorry….but that is a Fool’s Errand if you think you can convince us of the “rightness” of that agenda as it just isn’t gonna happen.

    You can carry on down the laundry list of things Biden is going to push for….return to the Paris Accord on Climate…..only in your wildest dreams.

    Return to the Iran Agreement and remove sanctions from the Iranians…..really?

    End the economic sanctions against the Chinese….well we know how McConnell and Biden will spin that one.

    Promoting the old Democrat rant of “Racism, Racists, Bigotry, and Hate of all things White/Male/Christian/Gun Owner/Heterosexual/Conservative…..will somehow cause 74 Million people to see things differently…..better check your meds if you think that.

    To unite this Nation the Democrats are going to have more way to the right if they think they are going to get the rest of us to move left any further than we have over the years.

    Can ya’ll do that….which one of you shall be the first to do that?

  2. Turley failed to mention that for the days since January 6th, We have had a “acting President” Pence.

  3. Sorry, Professor, but … Lady Gaga’s Barbie Doll entrance and her trashy look (such as the skirt of her costume starting at the crotch) were sad parts of the ceremonies at the USA’s Capitol Yuk to her messing with the USA’s National Anthem (the words to it do not include “par-AH-LESS” nights and “rock-Its” red glare.

  4. I with love you reports all news about Biden Good o Bad the same ways you was doing for president trump

  5. Jonathan wrote, “I thought that the Biden inauguration was one of the most beautiful and moving in my lifetime.”

    Someone I know said that

    I swear this whole thing looked like a scene right out of Hunger Games. Hail to President Snow.

    I think that comparison is pretty accurate.

    Now without further ado…

    Congratulations President Biden, now get to work and do a good job.

  6. Is there a past history of any president receiving the oath of office earlier than noon–I will have to check that out Learning and relearning are always good. Customs, traditions, policies are good. Please do keep up your writings. Education is good.

  7. Actually, the term “our president” or “my president” is incorrect. Those who opposed the Constitution did so in part because they believed it would establish a monarchy. The Constitution is clear that the President of the United States is merely the chief executive officer of the Executive Branch. He has no dominion over citizens and serves at the pleasure of the electors, or at least that’s who it’s supposed to be. Of course, Turley is a dyed-in-the-wool Democrat so he thinks Biden is his president and Trump was apparently not.

  8. I am waiting to hear from the commentators who were so sure that Trump would be starting his second term. I will be very disappointed if their explanation is only “They did fraud and got away with it.” Please make up something better.

    1. MollyG:

      No the Dims do what they always do and exploit a crisis to gain control. Then they screw it up and get thrown out like the dogs they are and sanity resumes for a few years. Do you read the papers? Oh and if you really want to see what’s going to happen in the next four or so, I’d read Atlas Shrugged.

    2. Until a forensic audit is completed on this last election, his millions of supporters will consider him to have started his 2nd term somewhere else.

      1. I’m all for a public investigation of the election, including forensic audits, as long as it the remit is broad enough to also examine Trump’s phone calls and meetings with state officials pressuring them to “find” votes in his favor.

        Would you agree to that?

          1. It’s not within my power, but I’ve already written my members of Congress. You can do the same.

      2. Olly and Mespo tried to win argument after argument here by claiming Trump’s reelection would vindicate their position. Clearly these clowns are masters of wishful thinking, not insights into America or it’s voters. It turns out their leader lacked the balls to admit he lost the election or to show up at the inauguration as our tradition of country above office holder has dictated for over 150 years. These guys will follow that con job to the end, or admit what suckers they have been.

        Guess how that turns out?

        1. Olly and Mespo tried to win argument after argument here by claiming Trump’s reelection would vindicate their position.

          Well we have the blog archives to prove what we were correct on. We haven’t needed to change our user ID to hide that history. And without a forensic audit on this past election, vindication is still an unknown.

        2. “that con job”

          If the election truly was a con job, then only guaranteed Deep State-approved presidents allowed for sure.

  9. I thought that it was curious that the ceremony began early. I liked Joe Biden’s speech and found it inspiring even though I did not support his candidacy.

    Because of the unseemly and likely illegal activities of members of the Obama administration in their efforts to derail and destroy the Trump presidency, I found it difficult to watch the camera’s focus on the Obamas and the Clintons.

    I thought that Biden’s call for unity was heartfelt, and I am glad that he called on every American to support that effort. And even though there has been nearly universal condemnation of the events of January 6 at the Capitol, it seems to me that the outrage against violence by Democrats has been selective. That event, horrific as it was, was preceded by months of violent protests. Violence is never the solution to our nation’s problems. It should never be condoned.

    Against that backdrop, I think that it will be difficult to unify the country until there is a satisfactory resolution to the difficult issues that have preceded the Biden administration.

    1. Certainly Biden lied when he said during his speech that “I will be honest” or similar near the end. He already lied when he went along with the deep state scum bags who claimed that Hunter’s laptop story was another Russia scam. I can and do only hope the GOP wins the House in 2 years and successfully exposes Biden’s China connection and corruption.

    2. Cassidy:

      There’s two kinds of unity: The first is where everyone sets the same goals and makes compromises on the means to effectuate them. Then there’s the other kind where one side sets the goals and the means of effectuating them and enforces that at bayonet point against the other side. Oh and everybody marches along in lockstep in either case but when the night falls, throats get cut on both sides of the bayonet. It’s a story as old as the Wooly Mammoth but we’ve avoided it here because we believe in fair elections and not watering down the other side by changing immigration rules. That’s over, so nightfall is upon us. If I were Biden, I’d watch my back.

    3. Cassidy,

      Did you notice the beautiful cloths President Biden & Vice President Kamal were wearing today. They looked exceptionally well groomed today.

  10. Dear President Biden,

    The same influences that threaten conservatives today will soon threaten the Democrat’s eastern establishment and the Constitution, itself. For the sake of UNITY and LIBERTY, I beseech you to reign in these influences.

    RUNAWAY GLOBALIZATION: China is a financial time bomb. Beijing wants our 401k’s to rescue themselves and won’t pay it back, and Wall Street does not care because they will get paid on the transaction, not the investment.

    Beijing will bury its sycophants in Silicon Valley when Beijing does not need them anymore, and in the meantime, Beijing is deliberately manipulating our corporate media to funnel anti-American bigotry into our national dialogue to shift attention away from Beijing’s horrible human-rights record.

    RUNAWAY IMMIGRATION: The Democrats are no longer assimilating immigrants. Immigrants are assimilating the Democrat party, and the effect is radicalizing the Democrat base. Is that bad? Just imagine THE SQUAD running the country during the Great Depression.

    THE RADICALIZATION OF EDUCATION AND MEDIA: this requires no explanation. It’s all around us and getting worse.

    Your humble Diogenes

    1. Biden’s gonna have a tough time. I prayed for this guy today, I tell you, he’s in a tough spot. It will be clear soon enough

      Sal Sar

      1. If they kill the filibuster and threaten the Supremes with court packing it will be time to have a SOVEREIGN COUNTY NATIONAL CONVENTION to discuss unified next steps. Red counties in blue states should be invited, too.

        Let’s hope these thin congressional majorities don’t try to railroad the country.

  11. Even though it doesn’t matter technically, it does speak to the pattern of ignoring the Constitution that Democrats and some Republicans have repeated for decades. From illegal wars to small issues like the inauguration, it doesn’t seem that anyone in Washington remembers that “ancient” document.

  12. Well then, obviously Trump continues to be president, since the process wasn’t followed correctly.

    It is heartening to watch our 46th president installed into power, under the watchful eye and protection of 20,000 military personnel, federal police and the Party leaders of the new administration.
    So much better and more orderly to have martial law enforced to make sure all goes well, instead of having thousands of enthusiastic voters and supporters cheering and dancing in the streets for their new president.
    The support and joy from the electorate here is so telling, and the coronation has been completed without annoying protests.

  13. “I thought that the Biden inauguration was one of the most beautiful and moving in my lifetime.”***********************
    Yep, the world has seen neither this much flourish nor caliber of a leader since Incitatus took the “reins” from the Red Chinese … er … Caligula! Surely, the almighty has a sense of humor. I’m gushing all over, too. It’s positively Shakespearean or even Puckish: “Lord, what fools ….”

  14. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government. The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex. James Madison

  15. I thought that the Biden inauguration was one of the most beautiful and moving in my lifetime.

    Well, there’s a certain poignant quality to the mise en scène.

    and of course the incredible poem by Amanda Gorman.

    As ‘incredible’ as On the Pulse of the Morning? I’ll wait for Mr. Derbyshire’s assessment. His last effort can be seen here (just search for the character string, “It was a quite sensationally” at

      1. No, it’s not sad! Professor Turley provides interesting perspectives on a nearly daily basis. We all get the benefit of that.

    1. “we don’t need the likes of you around here acting like jackasses”

      you’re a hoot, sailor-boy

    2. Nope. All it took was a massive effort of the elites, academia, entertainment, social media administrators and hi tech, and a wholesale subversion of the election system to do it.
      The electorate’s choice be damned, but hey whatever works.

      1. No you’ve got that backwards actually. The electorate made their choice by voting in overwhelming numbers despite a massive effort to inconvenience them, disenfranchise them, and subvert the integrity of our election by spinning elaborate and wholly unsubstantiated tales of voter fraud and other nonsense.

      2. Absolutely Gary. The Biden administration and Democratic party are now on the clock and it will be the actions of this regime that determine the fate of our republic. While it’s the natural right of the people to alter or abolish an existing form of government, that’s only legitimate if it’s in pursuit of one that improves the security of our right to life, liberty and the pursuit of happiness. That means at least 74 million Americans and their families won’t accept any other form of government.

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