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. Enjoyed the discussion on the Constitution and elections!

    Podcast/Article:
    The Truth About January 6th, with Trey Gowdy, Rep. Chip Roy, and UT Law’s Steve Vladeck

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    https://traffic.libsyn.com/secure/holdthesetruthswithdancrenshaw/120_The_Truth_About_January_6.mp3?dest-id=1849868

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    For this special episode, we cover everything you need to know about what happened on January 6th. Trey Gowdy, Congressman Chip Roy, and UT Law Professor Steve Vladeck join Dan to explain what the vote was (and wasn’t) really about, the lies you were told, and the constitutional arguments we heard from both sides.

    Trey Gowdy is a former state and federal prosecutor, as well as the former U.S. Representative for South Carolina’s 4th Congressional District. Follow Trey on Twitter at @TGowdySC. Rep. Chip Roy is the Congressman for Texas’ 21st Congressional District, a former prosecutor for the United States Attorney for the Eastern District of Texas, and former Chief of Staff for Senator Ted Cruz. Follow Chip on Twitter at @chiproytx. Steve Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Professor Vladeck has argued multiple cases before the U.S. Supreme Court, the Texas Supreme Court, and lower federal civilian and military courts. Follow Steve on Twitter at @steve_vladeck.

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    Hold These Truths with Dan Crenshaw

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  2. Jonathan. Please, instaed of commentary. Please help this administration, with legal efforts to punish those who NEED punishing, in the courts, in the name of justice.!

  3. It’s a new day in America.

    Glenn Greenwald
    @ggreenwald
    ·
    28m
    “It will also be just a matter of time before Julian Assange — having dealt the US security state a rare and humiliating loss — will have his freedom, and will be back doing what he’s spent the last 15 years doing: exposing criminality and corruption by the world’s most powerful.”

    https://twitter.com/ggreenwald/status/1352046939882348544

    Glenn Greenwald
    @ggreenwald
    ·
    30m
    “Edward Snowden is still freer than all those celebrating his lack of pardon because — unlike them — he gets to put his head on his pillow every night knowing that, when faced with the choice of serving power for careerism or risking his liberty to expose it, he chose the latter.”

    https://twitter.com/ggreenwald/status/1352046407281209345

  4. Bidens new press secretary is on msnbc right now. A problem I see:. She says “uh” after each sentence and between phrase in sentences. Uhh! Sick of it already

    1. Notice how polite the press corps is? They all tee it right up for her to “spin”….it’s disgusting.

      1. Nope. She did a fine job. And anybody paying attention to what she was saying didn’t even hear her saying “uh.”

        1. As David Gregory said and I’m paraphrasing slightly: “We should all celebrate the absence of toxicity.”

          Indeed.

  5. Trump was asked today a question about the definition of a Republicon. He said: “Con Man of the Republic” .

    1. Golly Gee Liberty2nd, how do you ever come up with such original little sayings. Golly Gee my Me Oh My.

  6. Well, well, well. It didn’t take long for the CCP to put the Biden administration in it’s crosshairs. How they respond will tell us everything we need to know about what country he serves.

    he Chinese government is firmly resolved to defend China’s national sovereignty, security and development interests. China has decided to sanction 28 persons who have seriously violated China’s sovereignty and who have been mainly responsible for such U.S. moves on China-related issues,” the ministry added.

    Along with Pompeo, Trump administration officials Peter Navarro, Robert O’Brien, David Stilwell, Matthew Pottinger, Alex Azar, Keith Krach, and Kelly Craft were sanctioned.

    Former Trump officials John Bolton and Steve Bannon were also named.

    “These individuals and their immediate family members are prohibited from entering the mainland, Hong Kong and Macao of China,” China’s Ministry of Foreign Affairs said. “They and companies and institutions associated with them are also restricted from doing business with China.
    https://www.westernjournal.com/minutes-biden-takes-oath-office-china-announces-major-action-28-trump-officials-families/?utm_source=Email&utm_medium=aa-breaking&utm_campaign=can&utm_content=firefly&ats_es=4b5c429f887fae96cbd6b730a05ed04b

    1. Hmmm? I wonder how one of Biden’s senior staff will advise him on this.

      In a scary preview of what lies ahead, a cherished senior advisor to President Joe Biden ranks murderous Communist dictator Mao Zedong among her “favorite political philosophers.”
      https://www.judicialwatch.org/corruption-chronicles/biden-senior-advisor-ranks-mao-zedong-among-favorite-political-philosophers/?utm_source=deployer&utm_medium=email&utm_campaign=corruption+chronicles&utm_term=members&utm_content=20210120224732

      1. this China crap only plays in the rightwing bubble. Nowhere else.

        Just because actual quotes don’t penetrate that lead-lined bucket you have for a brain, doesn’t mean they don’t exist. CCP officials actually announced those sanctions and Biden has a senior policy advisor that is quoted praising Mao. These are facts. How this new administration responds will be an indicator of what is to come. Try to take a critical view of these facts and form an opinion of what if anything the Biden administration should do in response.

        1. We better be studying Mao too. Im telling you, this is serious and you better learn the lessons of strategy that lady is talking about. You may think he was Darth Vader but like him or not he was a strategic genius for consolidating control over a very big country that had some ironic similarities to the US at this time as I previously elaborated.

          At the end of WWII the nationalist Chinese that were opposed to Mao before the invasion forced a truce among Chinese against the Japs, well, Chiang Jieshi essentially had the leadership of it all in hand; he had army and government, all in hand. Not 100% but mostly. More importantly, the “nationalists” had the big cities and the coasts and the banks and all the favorable trade from the foreigners

          And the communists had the Chinese peasants and the Chinese heartland. but they had leadership and courage and determination and they won. There is something here worth studying.

          Understand that Mao’s communism was essentially just a more convincing form of nationalism. To see it as communism in the way that we have been taught is inaccurate. If you can get past this error, then the strategic lessons are ripe for the picking.

          Saloth Sar

        1. Judicial Watch has been implicated in the attempted coup.

          Implicated, you say. President Trump was implicated as well and then the facts and evidence proved it was an attempted coup against him. Prove it wrong. Oh, and Judicial Watch was all over it.

    2. Olly, this China crap only plays in the rightwing bubble. Nowhere else.

      One should note that Trump made feeble efforts to kiss up to China’s pit bull, North Korea. In the process, Trump alienated South Korea, a crucial ally in that region.

      1. Did you hear anyone in the press, and I mean ANYONE in the media, ever ask Joe Biden, point blank, if he has ever met Tony Bobulinski, and had a meeting with him at the Beverly Hills hotel as Bobulinski said he did under sworn statement?

        Answer is NO.

        Enough said about the corruption in the dc fake news media.

        1. “Ten percent for the Big Guy” was a non-issue per the DC press corps. Imagine that.

          The “installation” of Biden/Harris is complete.

      2. Anon, and North Korea stopped firing rockets over Japan and they stopped threatening to send misses to our west coast. A little recognition of the actual history could make us take you more seriously.

    1. Old Feeble White guy fires young intelligent black man in power

      I’ve been asked by the Biden team to step down as Surgeon General. Its been the honor of my life to serve this Nation, and I will do all I can to ensure everyone has an equal opportunity to achieve and maintain health.

      — U.S. Surgeon General (@Surgeon_General) January 20, 2021

  7. When President Trump compared the intelligence community to their counterparts in Nazi Germany, Joe Biden compared President Trump to the Nazi propaganda minister Joseph Goebbels. We now know that Clapper lied to the congress under oath and James Comey recently said that the Republican Party should be “Burned to the ground”. Don Lemon tells us that anyone of the 75,000,000 men, women, White, Black, or Hispanic that supported Trump are Nazis. Jews were marched into the forest not by German soldiers but by ordinary men recruited for the task. They were forced to lay face down. Men women and children. The assassins were trained to shot them at the base of the neck. They were not trained very well and the shots struck and exploded the heads of their victims. This went on for days. The shooters ended up being covered with blood, skull fragments and brain matter. Joe Biden and Don Lemon want you to believe that Republicans and those who voted for Trump are Nazis and our just like those who commanded the slaughter in those terrible days. You filled in the circle on the ballot for Joe and each day you pick up the remote and tune into Don Lemon on CNN and by doing so you reinforce the acceptance of their Nazi comparisons to Republicans. Any means justifies the end for men of ill repute. If you would be interested in what a real Nazi is you should read the book “Ordinary Men”. Jonathon Turley please forgive me if I will not have your little inauguration cup cake and join you in celebration of the day. However, like you my hope is that Joe Biden will be the best President we’ve ever had.

    1. Why is former Obama CIA liar in chief John Brennan still alllowed on cable “newz” BSNBC to spout his lies and divisive garbage? He belongs behind bars.

    1. I imagine a pick-up team of l/t aides and Dr. Jill. I suspect there will be factions who want to keep up the charade (with their own complicit media) and others who want to shovel Willie’s Ho into the President’s chair (who are working with Politico right now). Some people with dementia suffer a circumscribed period of time where they just implode mentally (in Ronald Reagan’s case, this period lasted < 24 months). Maureen Reagan said she noticed nothing untoward until the middle of 1993. In August of 1994, he stopped recognizing Edmund Morris, the biographer who had shadowed him for nine years at that point. If Biden's suffering in this way, it may not be long.

  8. when you get done gloating about Gaga.. you should watch the video that exposes ‘her PACKAGE!’.. A small package but very visible… search for it you don’t believe it… In concert no less… Then please come back and explain what is good about being a dishonest FAKE woman.. Please.. I will wait!…

    1. one look at jaydenx you could have guessed he was not a trump supporter. reminds me of “kid creole” remeber that guy? Minne the moocher. great song

  9. From an astrological perspective the time and date of Biden’s inauguration was the worst possible time and day of the entire year.

    Now they have to figure out how they will ensure his very early exit from office ASAP before his Dementia gets so bad that the drugs no longer work to hide it.

    Then again, they probably already have that plan in place.

  10. Sorry I found no route on your site to ask you a question I’ve listened for but not heard. If the pending Senate impeachment trial of Trump is to presided over by the Chief Justice and this particular case is unconstitutional, isn’t the Chief Justice knowingly violating his oath of office if he also believes the process is unconstitutional?

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