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.