I found the initiation in Biden one of the most beautiful and moving of my life. It was overwhelming to hear Lady Gaga’s rendition of the national anthem, Garth Brooks’ version of Amazing Grace and of course the incredible poem by Amanda Gorman. Therefore, sometimes it makes everything difficult to be a law professor. It’s like going into a powerful movie and focusing on the legal anomalies, like having a character doing something that the rules of evidence don’t allow. That moment came when Joe Biden took the oath and was declared president before noon. I received calls from reporters from the Washington Post and other media outlets to ask if Biden was really president at the time. This will only be of interest to constitutional geeks and some journalists, but he wasn’t the president at the time. The President stayed on Donald Trump until noon under the 20th Amendment.
Biden was sworn in almost ten minutes before noon. That made the oath prospective rather than transformative as to its status. The 20th amendment states:
The terms of office of the President and Vice-President ends on January 20 at 12:00 noon and the terms of senators and representatives on January 3 at 12:00 noon in the years in which that term would not have been ratified without this article; and the terms of their successors then begin.
The oath is required, but it is not the deed that makes Biden the next president. Article I states: “Before entering into the exercise of his office, he must take the following oath or attestation.” Therefore, he must take the oath before “performing this office”. It doesn’t give him office.
Without a resignation from Trump, he remained president at the time. When Senator Amy Klobuchar said she would be the first to name him “President Biden,” it may have been literal but constitutionally incorrect. 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 lead to his inauguration. The same applies if he took the oath on January 6th after certification in Congress. Technically, Biden has taken a prospective oath in that sense.
That doesn’t make Joe Biden the “early president” when President John Tyler was really the “casual president”. He is our president. . . starting today at noon. It is not uncommon to view the oath as a prospective affair, but it only allows him to exercise his powers after noon. So this was not a matter of repetition type after Chief Justice John Roberts maimed the oath with President Barack Obama.
None of this matters. When I wrote about it, the subject had entered history as mere constitutional curiosity.