Musings on a constitutional mystery: missing Presidents and "headless monsters"?

• Author: Gant, Scott E.

On Monday afternoon, January 20, the nation celebrated the second inauguration of William Jefferson Clinton as President of the United States. As a throng of thousands clustered tightly around the congressional dome, no one seemed concerned that just before Clinton recited the oath of office our nation may have been without a President.

How is this possible? Under the Twentieth Amendment to the Constitution, "[t]he terms of the President and Vice President shall end at noon on the 20th day of January." True to form, President Clinton was running behind schedule for his inauguration. It was roughly five minutes past noon before he completed the presidential oath of office as required under Article II, Section 1 of the Constitution.(1) In view of this gap between the end of Clinton's first term and the completion of the presidential oath, the following question arises: who was President during the interval between noon and when Clinton was sworn in for his second term?(2)

Clues to this mystery are afforded by a number of constitutional provisions. These are the starting points for our analysis:

(1) Article II, Section 1, clause 8, provides that before the President "enter on the Execution of his Office, he," take an path to "preserve, protect and defend the Constitution of the United States."

(2) As already indicated, according to the Twentieth Amendment the terms of the President and Vice President end at noon on January 20. It further provides that "the terms of their successors shall then begin."

(3) Section 3 of the Twentieth Amendment states "[i]f, at the time fixed for the beginning of the term of the President . . . the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified."

What do these provisions suggest about the puzzle at hand? Who was President between noon and five minutes past noon this past Inauguration Day? There appear to be three possible answers.

1. STILL PRESIDENT CLINTON

   First, Clinton himself may have remained President throughout the time in question. After all, according to the Twentieth Amendment, noon marks both the end of his first term and the beginning of the next presidential term -- Clinton's second term as President. Doesn't this end the mystery about who was President after noon?(3) Not quite. Several constitutional provisions suggest that the Twentieth Amendment's reference to a new term does not resolve our inquiry. For instance, the Twentieth Amendment states the terms of the President's and Vice President's "successors" shall begin at noon. But the relevance of this provision to a second term President is less than clear; can a President ever be his own "successor"? In addition, even if the Twentieth Amendment makes clear that the next presidential term begins at noon, it may be that recitation of the presidential oath is nonetheless required to initiate any particular President's occupancy of the "Office of President."(4) In assessing this prospect, consider that the presidential term is affixed to no person; it begins and ends at preordained times, regardless of who occupies the office or how many persons occupy the office during that period.(5) This suggests that the mere commencement of one term immediately following the cessation of the previous term does not obviate the need for a particular person to complete the oath to "enter on the Execution of [the] Office."(6)

   Under our analysis then, the presidential oath appears to be a precondition for assuming the Presidency.(7) Yet, additional considerations could lead one to reject the conclusion that Clinton ceased being President -- albeit momentarily -- during the recent inaugural ceremony. One might imagine, for example, that if recitation of the presidential oath is required of those assuming the presidency, this requirement is not temporally rigid. In other words, an incoming President may have to take the oath, but only as soon as it is practicable. Under this view, the oath remains tightly linked to the legitimate exercise of presidential powers while not serving as an absolute temporal precondition to assumption of the office. The intuitive appeal of such a...