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Mike Pence took his oath a few minutes before Donald Trump did.

During those few minutes, was he Vice President to President Obama?

Lightness Races in Orbit
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Hanky Panky
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1 Answers1

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No, because while taking the oath is a prerequisite for executing the office, just swearing it doesn't make one POTUS or VPOTUS.

Article II, Section 1, Clause 8 of the US Constitution says:

Before he [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: [...]

"Before" does not necessarily mean "the exact moment" and someone can hold an office without executing it. Term limits are defined in the Twentieth Amendment to the United States Constitution, Section 1, which states:

The terms of the President and Vice President shall end at noon on the 20th day of January

So at January 20th 2017 12:00:00*, the terms of Obama and Biden ended and those of Trump and Pence started. But they still had to take their oaths in order to be allowed to actually do any of those things their offices allow them to do.

* One could nitpick and ask "12:00 according to what time zone?". If you really want to know, please ask a new question. someone asked that question.

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Philipp
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  • Thanks! So if there was some urgent decission to be made by the POTUS during the ceremony they would just fast track the oath and get along with it? – Hanky Panky Jan 23 '17 at 12:08
  • I'd imagine that in theory, if the urgent thing happened before 12:00, then the outgoing POTUS would make the call, because they're still president, regardless of the oath. If it's after 12:00 and the oath hasn't been said yet, then yes, they'd get the oath said as quickly as possible, and then the new president would handle it. – anaximander Jan 23 '17 at 12:41
  • That's interesting, what if by some contrived scenario they were simply unable to swear him in, but it was after 12. Are they able to skip the oath? – Cruncher Jan 23 '17 at 14:21
  • @cruncher The oath is mostly ceremony. Yes the president is required to take an oath, but Obama made a mistake in his initial swearing in and the oath was simply repeated later. It did not make him any less president in the interim. – Leatherwing Jan 23 '17 at 14:33
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    @helrich That's incorrect. The oath IS required. Article II Section 8, Clause 1. – Philipp Jan 23 '17 at 14:36
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    @Cruncher No, the oath is required before the office of POTUS can be executed. I added the relevant section of the constitution to the answer. – Philipp Jan 23 '17 at 14:40
  • @Philipp so after noon and before the oath, we're without a president? – Cruncher Jan 23 '17 at 15:06
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    @Cruncher You have a president. That president just isn't allowed to do anything before he said those 35 words. But the constitution doesn't say anything about how that oath needs to be taken. The ceremony is optional. So in a pinch Trump could just have quickly said "I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States and now launch those goddamn missiles" – Philipp Jan 23 '17 at 15:11
  • @Philipp did the swearing in actually happen after noon? It seems like it might be better to have it at 11:59 or so. – phoog Jan 23 '17 at 15:18
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    @phoog Was it? Maybe, I didn't watch it because it was just an irrelevant PR event anyway. But as I said, it doesn't really matter because the constitution just says he needs to take the oath before performing any executive acts. – Philipp Jan 23 '17 at 15:20
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    the constitution doesn't say anything about how that oath needs to be taken -> So Trump could have taken the oath over Twitter? –  Jan 23 '17 at 15:21
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    @Leatherwing but any act undertaken by Obama before the second "correct" swearing of the oath could presumably be legally challenged on the grounds that the constitutional requirements for Obama to act as president had not been met. Such a challenge would also require a legal determination that the first swearing had in fact been inadequate in some way; my recollection was that the mistake was so minor that it would probably have been ruled insignificant if the question had come before a court, but the second swearing was organized to preempt any possible challenge. – phoog Jan 23 '17 at 15:23
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    @Carpetsmoker The constitution doesn't say anything about the conditions for administering the oath, but I suppose the requirements for a valid oath are established in common law or the like. That question might be well received on [Law.SE]. – phoog Jan 23 '17 at 15:29
  • I suppose, theoretically, a new president could refuse to take the oath and become a sort of "lame duck president" for as long as it takes to impeach him/her (well, or just invoke §4 of the 25th I guess). But why anybody would do that is beyond me. – Lightness Races in Orbit Jan 23 '17 at 16:36
  • @phoog: Having the inaugural ceremony start with the oath of office, followed by speeches that are timed to end at noon, allowing the President to immediately get to work, would seem a sensible approach. Though it might not be a bad idea for the Electoral College to require that anyone wishing to be considered eligible must take the oath before the EC vote. I doubt anyone who could get elected would try to pull any shenanigans by refusing to take the oath, but if the EC could regard such refusal as grounds for disqualification that would avert any Constitutional crisis. – supercat Jan 23 '17 at 17:27
  • @supercat I suppose refusal to take the oath would constitute "failure to qualify" for the purposes of section 3 of the 20th amendment. – phoog Jan 23 '17 at 17:41
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    @Carpetsmoker Nah, the oath exceeds the character limit. – Toast Jan 23 '17 at 18:10
  • So, does this mean the U.S. has no president from 12:00:00 until when the president-elect finishes reciting the oath of office? – AAM111 Jan 23 '17 at 21:44
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    @OldBunny2800, as has been mentioned repeatedly in this comment thread, the US has a president. He just isn't allowed to do anything. – Mark Jan 23 '17 at 21:55
  • One could nitpick and ask "12:00 according to what time zone?". If you really want to know, please ask a new question.: someone did – R.M. Jan 23 '17 at 22:22
  • I'm surprised there's not yet any executive order to increase the Twitter character limit. – Dawood ibn Kareem Jan 24 '17 at 10:16
  • I am wondering whether the oath of office precludes an atheist or a member of a polytheistic religion, one who takes his belief very seriously, from being president of the USA. Or are alternative oaths available, like there are for jury service? – nigel222 Jan 24 '17 at 13:45
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    @nigel222 The oath as written in the constitution has no religious references. Some interpretations of the bible forbid people to "swear", so it also provides an alternative phrasing using "I affirm". Some presidents added some religious formula at the end, but that's not part of the oath. When you become president, you can finish it with "so help me Odin and Thor" if you want to. – Philipp Jan 24 '17 at 13:49