Article II and the Twentieth Amendment: When does the President become President?

In a relatively incredible slip up, Chief Justice John Roberts administered the Presidential oath of office incorrectly during Tuesday’s inauguration of President Obama. While much of the media asked questions as to what the consequences of a mis-recited oath would be (with Fox News even questioning whether Obama was indeed the President while speculating that the issue may find its way to the courts), the general consensus has been that the oath is a mere formality or a meaningless recitation, as Obama had officially become President at noon in accordance with the 20th Amendment.

Of course Mr. Obama is in fact the President, but I question the dismissiveness with which many have treated this issue. The 20th Amendment states: “The terms of the President and Vice President shall end at noon on the 20th day of Janurary… and the terms of their successors shall then begin.” This provision clearly superseded portions of Article II relating to the point at which the President begins his new term- changing inauguration day from March 4th to January 20th. Yet there is no reason to think that Article II, section 1, paragraph 8 was affected by the Amendment. That provision reads: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: I do solemnly swear (or affirm) that I will faithfully execute the Office…etc.”

So whereas the twentieth Amendment specifically states that the newly elected President’s term begins at noon on the 20th day of January, Article II plainly states that a President shall recite the oath before he “enter in to the execution of his office.” Is there a difference between being able to execute the office and beginning your term? Its certainly a possibility. Perhaps, though he was officially president of the United States at noon, President Obama could not have legitimately exercised any of the authorities of that office until he correctly recited the oath. While this is a moot point now that the President has retaken the oath, and practically speaking this is not an issue that deserves much attention (especially not by the courts as some have suggested), it certainly is an odd set of events that is at least interesting enough to think about. I for one am not ready to dismiss the oath as a “mere formality.”

Posted by Todd Garvey