SIX WAYS TO SUNDAY
If Mitt Romney should be elected President,
just where- and how- will he take the Oath of Office?
Wednesday, July 4, 2012
by Richard E. Berg-Andersson
Should former Massachusetts Governor Mitt Romney- the presumptive Republican presidential nominee, as of this typing- be elected President by defeating the incumbent Democrat in the White House- President Barack Obama- he will face an historic dilemma: just where (as well as under what circumstances) will he be able to take the Oath of Office come Noon Eastern Time US [1700 GMT] next 20 January?
The problem is that, in 2013, 20 January falls on a Sunday and, therefore, the public Presidential Inauguaration festivities (the Swearing-In on the steps of the West Front of the United States Capitol followed by the Inaugural Address; then the Inaugural Parade up Pennsylvania Avenue to the White House-- not also to mention all those Inaugural Balls!) will have to be postponed until Monday 21 January this time round. Exacerbating this problem is the fact that, should Romney, indeed, become President as a result of the 2012 Election, he will not only have overcome the current occupant of the White House, he will also be of the opposite Major Party from that occupant!
Only six times before in the History of the American Presidency has the day set aside for the beginning of the Term of Office of a President (as well as Vice-President) of the United States fallen on a Sunday and none of the previous times this has happened provides all that much of a guide for what to do re: the swearing-in of a potential Romney Administration the day before a public Presidential Inauguration.
The source of the problem:
As has been noted elsewhere on this website, the only reference to a specific date for the start of governmental activities, from time to time, in the original text of the Constitution of the United States itself is to be found within Article I, Section 4. clause 2 which requires that Congress meet at least once each year on the first Monday in December, unless they shall by law appoint a different Day.
Constitutional historians, to this day, debate whether or not this "first Monday in December" was- or was not- meant to also signal the start of the Terms of Office of newly elected (or re-elected) Senators and Congressmen: in fact, the inclusion of even this date was not enthusiastically supported in the 1787 Federal Convention in Philadelphia (some of the delegates to said Convention argued for May as a better date for convening Congress, while others didn't see the need to indicate a date at all)-- in the main, it seems to have been thought necessary (based on the discussion on the Convention floor on 7 August 1787) to set a specific date, if only so that the States could better schedule their elections (principally for members of the new Federal House of Representatives). Delegate Randolph of Virginia even went so far as to claim that a December date was itself more convenient for the several States, based on a perusal of the then-extant State Constitutions he himself had made (although he must not have so perused too closely, since a number of States held their elections in the Spring, rather than in the Fall), and this- along with a May convening of Congress likely interfering with the ordinary "private business" of members of both houses during the summer months (recall that the United States of America of the late 18th Century was still largely agrarian in its economy)- seems to be what finally carried the day for this proposal.
But nowhere in the Constitution did the Framers thereof allow that this "first Monday in December" might be anything more than merely a "default" date for Congress to meet in annual session (an "if you don't specifically set a 'different Day' by statute, then this is the date your annual session begins" fallback) and, to complicate matters, the Confederation Congress- once it had been apprised of the Ratification of the Constitution by at least 9 of the 13 original States of the American Union in the middle of 1788- adopted enabling legislation which set the first Wednesdays in January, February and March as the dates for, respectively, the Presidential Electors to be "appointed" (that is: chosen ), said Electors to meet in their several States and cast their (two) votes for President of the United States and the earliest date on which the First Congress of the United States could at all meet and tabulate said 'Electoral Vote' and thereafter declare who had been elected President and Vice-President.
By sheer accident of the Gregorian Calendar already in use in what became the USofA for less than four decades come 1789, the first Wednesday in March that year just happened to be the 4th of March.
Once in office, of course, the new Federal Congress had no obligation to at all follow the guidelines of the old Continental Congress that, by its own statute, had already "gone out of business" by 4 March 1789. The First Congress could have (as it did) finish up its First (the so-called "Quorum") Session in late September 1789 and reconvened in a Second Session (as it did) in January 1790 (a "different Day" "by law" from the constitutional "default" December date, but already in the following year [therefore, fulfilling the requirement that Congress meet at least once each year]) and then- which it did not do- declare that their work as the First Congress would be completed before the first Monday in December 1790 (which would, therefore, mark the earliest date the Second Congress could then first convene): in addition, it is interesting to note that- had this first Monday in December been originally seen as the beginning of Congressional Terms of Office- there might have been no need at all for the 20th Amendment to the Constitution, at least insofar as the Terms of Office of members of Congress be concerned (clearly, having Congress first convene in December would not at all conflict with today's "first Tuesday after the first Monday in November" being General Election Day).
Instead, however, Congress decided that the session beginning on Monday 6 December 1790 was part of (that is: a Third Session) of the First Congress itself (thereby enshrining what would come to be known- until it was eliminated via the adoption of the 20th Amendment to the U.S. Constitution in 1933- as the "Lame Duck" session of Congress every two years). OK-- granted: but Congress could have then, at least, decided that their own Terms of Office (and, by extension, that of the President and Vice-President of the United States) began and ended on the very first Wednesday in March which had been first set up by the dying Confederation Congress (in which case, such terms- from time to time- beginning on Sundays would never have ever become an issue)!
Then, in relation to the foregoing: the First Congress- by a Joint Resolution dated 14 May 1790 and accepting the Report of a Joint Committee on the matter- declared that the Senators of the first class, and the Representatives, will not, according to the Constitution, be entitled, by virtue of the same election by which they hold seats in the present Congress, to seats in the next Congress, which will be assembled after the 3d of March, 1791. With this, the date 4 March (regardless of on what day of the week it might fall!) was "set in stone" (that is: until the aforementioned 20th Amendment came along) as the start of a new Congress and, thereby, the Terms of Office of Senators and Representatives.
The date of the start of the Terms of Office of President and Vice-President of the United States themselves remained another matter altogether (an attempt to actually codify the first Wednesday in March as such [along with provisions for a Special Election for President and Vice President- to a full four year term!- should (but only if) both High Offices happened to be vacant at the same time] by statute was debated, yet eventually tabled, during the course of that Third ["short" or "Lame Duck"] Session of the First Congress) until the Second Congress passed a statute (1 Stat. 239) specifically stating- in that statute's Section 12- that the term of four years to which a President and Vice-President shall be elected shall, in all cases, commence on the fourth day of March next succeeding the day on which the votes of the Electors shall have been given.
The first time the 4 March immediately following a Presidential Election fell on a Sunday happened to be in the year 1821. By sheer dumb luck (that old adage that God looks after children, drunkards and the United States of America? [;-)]), no immediate problem manifested itself-- as the incumbent President, James Monroe, had been re-elected (and by a near-unanimous Electoral Vote, too!: though the oft-told story that a single Presidential Elector cast his vote for John Quincy Adams instead of Monroe so that George Washington might remain the only person elected President by unanimous Electoral Vote is all due mythos-- Elector William Plumer, a former Senator and Governor of New Hampshire, was [like J.Q. Adams himself] a former Federalist-become-old "Jeffersonian" Republican who had been "appointed" as a J.Q. Adams Elector well before anyone [least of all Plumer himself] could have known just how his fellow Presidential Electors outside of the Granite State might have voted; unfortunately for Plumer, the apotheosis of George Washington was already well underway by the 1820s and the story of just such a defiant Elector all too well fit the mythology then in the process of being manufactured [popular biographers of Washington throughout the 19th Century- already piggybacking on the work of "Parson" Mason Locke Weems, who had already popularized the (in?)famous "Cherry Tree story"- were all to happy to also include the "defiant Elector" story in their own accounts of the life of the Father of Our Country]).
President Monroe apparently assumed he could merely take the Oath of Office for his second Term on Monday the 5th and, if necessary, continue to carry out the duties of his High Office- where necessary- throughout Sunday 4 March 1821 on the basis of the Oath he had first taken back in 1817. Nonetheless, he wanted to make sure and- in what amounts to something rather close to an unusual "Advisory Opinion" by a U.S. Supreme Court Justice- received an answer to an inquiry he himself had made to Chief Justice John Marshall on the subject!
After noting- in a letter to the President dated 20 February 1821- that his comments were written after having conversed with my brethren (that is: other Justices on the High Court [!?]) on the subject, Marshall went on to opine that [a]s the Constitution only provides that the President shall take the Oath it prescribes "before he enter on the execution of his Office", and as the law is silent on the subject, the time seems to be in some measure at the discretion of that high officer. There is an obvious propriety in taking the Oath as soon as it can conveniently be taken, & [so in the original: REB-A] thereby shortening the interval in which the Executive Power is suspended. But some interval is inevitable.
Chief Justice Marshall went on to note that the Term of Office of a sitting President expired, and the Term of Office of a President-elect began, at Midnight as 3 March became 4 March- yet it had ever been the custom of the President-elect to be formally sworn in at Noon on the 4th: [t]hus, Marshall stated, there has been uniformly & voluntarily and interval of twelve hours during which the Executive Power could not be exercised. This interval may be unavoidably prolonged. Circumstances may prevent the declaration of the person who is chosen until it shall be too late to communicate the intelligence of his election until after the 4th of March [recall, dear reader, that the first practical use of the telegraph was still nearly a quarter-century away at this point]. Marshall also noted that this, in fact, was what had happened as regarded the very first election of President Washington.
Undoubtedly, the Chief Justice went on, on any pressing emergency the President might take the Oath in the first hour of the 4th of March; but it has never been thought necessary so to do, & he has always named such hour as he deemed most convenient. Marshall concluded: Might we hazard a conjecture, it would rather be in favor of postponing the Oath till Monday unless some official duty should require its being taken on Sunday. But others who mix more in society than we do, can give conjectures on this subject much more to be confided in than ours.
In the end, President Monroe postponed his Oath-taking (along with all its concomitant "pomp and circumstance") until Monday 5 March 1821 and there seems to have been no pressing business or other "emergency" during the preceding day that required him to do otherwise.
The next time 4 March occurred on a Sunday in a year in which a President was to take office on that date happened to be in the year 1849: a case in which a newly elected President of the United States would be taking office.
Whig Zachary Taylor had been elected to succeed Democrat James Knox Polk and, in Taylor's case, no constitutional queries appear to have been made on his behalf as regards the issue of 4 March falling on a Sunday. President Polk simply left office on Saturday the 3rd and Zachary Taylor was sworn in on Monday the 5th; technically, if only so, there was no President of the United States during all of Sunday 4 March 1849!
This, of course, became the source of the legend of "President" David Rice Atchison having napped through his entire "term" as "President" (a story the Missouri Senator himself liked to thereafter tell while out on the hustings [although, later on in life, he purposely "pooh-pooh"ed the story and, indeed, seems to have often found his notoriety as (allegedly) "President for a Day" rather annoying in his old age]): Senator Atchison had been President pro Tempore of the United States Senate during the preceding (30th) Congress (as he would be again for the upcoming Special Session of the Senate necessary in order to "advise and consent" to appointments made by the new President Taylor) and there was much thought, at the time, that the Senate President pro Tem might well become "acting President" (but only theoretically-- on [altogether dubious] grounds that, as the Vice-President of the United States is the constitutional President of the Senate, the President pro Tem would then also be "Vice-President pro Tem" whenever there might be no Vice President [newly elected V.P. Millard Fillmore was also not going to be sworn in as such until Monday 5 March 1849 and, like Polk, outgoing V.P. George Dallas had already "left the building", so to speak] and, where there is no President, the powers of same "devolve on the Vice-President" [per Article II, Section 1, clause 6 of the U.S. Constitution]-- thus, so this reasoning went, where there is no President and no Vice-President at the same time, the Senate President pro Tempore should be President by default).
In reality (and Senator Atchison well knew this: his own stories of the "achievements" of the "Atchison Administration" were, by all accounts, always told with more than a few nods and winks on his part), the office of President of the Senate pro Tempore (as befitted the office's very name: pro Tempore is, after all, Latin for "for the time being") only existed while Congress was itself in session (its establishment as a more or less "permanent" office of the Senate was still in the future [as was the first Presidential Succession Act (24 Stat. 1), not enacted until January 1886 (in a singular irony, it was signed into Law by President Grover Cleveland a week before Atchison himself died!) but done so as to eliminate any such confusion regarding presidential and vice-presidential vacancies in future]). Thus: during all of Sunday 4 March 1849-- while, yes, there was no President nor Vice-President of the United States-- there was also no Senate President pro Tempore!
At best, Atchison (sworn in as President pro Tempore of the Special Senate Session about an hour before Taylor and Fillmore were themselves each sworn) might have- if only technically- claimed to have been President of the United States for an hour or so on the morning of Monday 5 March 1849 but, of course, he was never sworn in as President in the first place (nor did he at all even seek to be so sworn) and, therefore, this whole episode remains, at best, a false answer to an otherwise damn good trivia question.
In the meantime, the United States itself seemed none the worse for wear for not having a President (or Vice-President) for a day or so back then (something it could not get away with today).
The same, however, could not necessarily be said about the next time THE 4 March fell on a Sunday... by terrible coincidence, the year was 1877!
For this was the year of the resolution of the (in?)famous Disputed Election of 1876 (something that, frankly, makes Bush vs. Gore:2000 look more like a Sunday School picnic by comparison!), detailed elsewhere on the website (most fully in notes directly underneath our site's table of DATES OF U.S. PRESIDENTIAL ELECTION "EVENTS").
Fearing a possible coup d'etat attempt by the more vociferous supporters of the defeated Democratic presidential candidate Samuel Tilden (this Presidential Election, even before ensuing the dispute over Electoral Votes had first emerged, had been altogether contentious-- and you think presidential politics nowadays is polarized!: Republicans of 1876 not only called Democrats a bunch of ragged, unkempt ruffians and the like in the course of heated exchanges of political rhetoric, many in the Grand Old Party honestly believed this to be so and acted accordingly ["Always let the Paranoid know you're at least 100 percent behind them" ;-)]), it was arranged that newly declared President-elect Rutherford B. Hayes (Republican) take the Oath of Office in the White House during the day on Saturday 3 March 1877 (so there could be no doubt but that President Hayes had the constitutional power to act should something untoward happen to occur during the day on Sunday the 4th or early on the 5th before Hayes could publicly take the Oath of Office)...
further, the Oath-taking was done in secret (apparently, there was still no little doubt- at the time- as to whether or not a President of the United States could even legally take the Oath of Office before his Term of Office had actually started) and newspapers all across the country published on both that Sunday and Monday mornings carried various and sundry rumors as to President Hayes having taken- or, for that matter, not taken- the Oath of Office early.
Of course, all of this was facilitated by the outgoing President- Ulysses S. Grant- being of the same Party as Hayes and, because of this, making the White House available for just such a private swearing-in ceremony (one fairly wonders what might have been the procedure [if any] had Tilden, instead, been declared President-elect!) and, as things turned out, there was no unrest in the Nation's Capital in the interim and the public Inauguration Ceremonies went forward as originally planned, as well as without incident, come Monday 5 March 1877.
Thanks to the Gregorian Calendar practice of skipping a Leap Year in "Century Years" (those ending in '00') not wholly divisible by 400, 40 years- instead of the more usual 28- passed before a 4 March marking the beginning of a new presidential term once more fell on a Sunday.
Re-elected President Woodrow Wilson, evidently, felt that Rutherford Hayes had set something of a precedent with his private ceremony (despite the extraordinary conditions under which it had taken place back in 1877 of which Wilson, a professional historian in his own right, was certainly well aware) for- on Sunday 4 March 1917- Wilson took the Oath of Office for his second term "privately" (although everyone immediately knew about it, unlike the situation four decades before) in the so-called "President's Room" near the Senate chamber of the United States Capitol (in which he had already esconced himself for the purpose of signing into Law bills that had been passed in the waning hours of both the outgoing 64th Congress and his own First Administration [the Senate, in particular, had extended its "Legislative Day" of 3 March 1917 into the morning of the 4th (by 1917, it had been accepted that the Terms of Office of Congressmen and Senators, Presidents and Vice-Presidents, ended at Noon Washington time of 4 March [not Midnight, as had been thought by both President James Monroe and Chief Justice John Marshall nearly a century earlier]) in order to try and pass Wilson's "Armed Ships" Bill (the so-called 'Zimmerman Telegram'- which created a sensation in the United States at the time- asserted that Germany- then a belligerent in World War I- had the right, under International Law, to sink Neutral vessels merely suspected of carrying munitions to Germany's enemies: the USofA was still a Neutral in March 1917 and President Wilson wanted American merchant ships to be able to defend themselves against attack)-- but Senator "Fighting Bob" LaFollette of Wisconsin, under the Senate's then-concept of "unlimited debate", was able to filibuster the bill for nearly five days and, although adopted overwhelmingly by the House, the bill never came to a vote in the Senate and, therefore, Wilson never got to sign it (this very incident, interestingly, prompted the Senate to adopt its first Cloture Rule, under which a supermajority of Senators could shut off debate, later that same year): Wilson was present in the Capitol in case it passed the Senate at the last minute of the session]).
The next day- Monday 5 March 1917- came the public Swearing-in outside that same Capitol at which President Wilson delivered his Second Inaugural Address.
Not the workings of the Gregorian Calendar this time but, rather, the intervening adoption of the 20th Amendment to the Federal Constitution moving the date of the start of a President's term up to 20 January kept said date from falling on a Sunday for yet another 40 years.
Come 1957, Dwight Eisenhower had been re-elected to a second term as President and 20 January falling on a Sunday that year necessitated his (along with Vice President Richard Nixon) also taking the Oath of Office in a "private" ceremony. Partially due to the manners and methods of a Congress (now- under the aforementioned 20th Amendment- taking office more than two weeks before a President and Vice-President chosen in the same Federal Elections as had been its own members) having changed over four decades but also largely due to the "center of political gravity" of American high governance having clearly shifted- thanks mostly to two World Wars and a Great Depression in between- from the halls of Congress in the Capitol to the all-important "Oval Office" further up Pennsylvania Avenue, it was decided that President Eisenhower would take the Oath on this Sunday inside the White House.
But the usual public quadrennial Inaugural Festivities took place in Washington, D.C. on Monday 21 January 1957.
The year 1985 is popularly known as the one for which the public Inauguration Ceremonies were moved back a day in order to accommodate a Super Bowl [!?] and, as with many of the other stories recounted in this piece, this particular story is also a myth (yet it is interesting how many- including those more noteworthy amongst- political commentators and even some historians, to this very day, have repeated it).
By mere coincidence, Sunday 20 January 1985- besides being the start of the second term of re-elected President Ronald Reagan- happened to be the date scheduled for Super Bowl XIX between the Miami Dolphins and San Francisco 49ers of the National Football League: President Reagan even called the coin toss before kickoff (shortly after 6 PM Eastern Time) via satellite television (the game itself was in California). Some six hours earlier, Reagan- along with Vice President George H.W. Bush- had been sworn in during, yes, a "private" ceremony inside the White House but the Super Bowl had nothing at all to do with it: President Reagan was merely following the earlier precedent of President Eisenhower as regarded an Inauguration Day that happened to fall on a Sunday.
The public Inaugural the next day- Monday 21 January 1985- was intended to be held outside (indeed, this was supposed to be the first one to take place on the steps of the west front of the Capitol [prior outdoor Inaugurations had taken place on the building's east front- originally intended, by its designers, to be the "front" of the building, by the way- but the shifting of that "political center of gravity" to the White House had affected this aspect of the festivities, too!]) but the East Coast of the United States was in the grips of record cold temperatures (the air temperatures in and around the Nation's Capital were around 0 degrees Fahrenheit [-18 Celsius] that morning with Wind Chill Factors well below that) and so it was decided to cancel all related outdoor ceremonies (including the traditional Inaugural Parade up Pennsylvania Avenue).
Instead, President Reagan took the Oath of Office "publicly" in the Rotunda of the Capitol (where he also delivered his Second Inaugural Address)-- thus, Ronald Reagan is the answer to a trivia question: name the only President of the United States to have formally taken his Oath of Office for the same Term of Office indoors twice!
If President Barack Obama should be re-elected to a second term this coming November, then there is no problem at all: President Obama, almost certainly, will follow the precedents set by both Presidents Eisenhower and Reagan and take the Oath of Office on Sunday 20 January 2013 in a "private" ceremony at the White House with the usual public Inaugural Festivities taking place the following day.
But what if Mitt Romney, instead, is elected? If so, it will mark the first time since 1849 that a newly elected President of a Party different from that of the incumbent will be taking office (and, as I have already noted, the United States simply went without a President [and Vice-President] for a day [unless one actually subscribes to the David Rice Atchson myth!], something that- in todays world- is simply unacceptable)-- in addition, this scenario would also mean that the incoming challenger would have actually defeated the outgoing incumbent!
Of course, my tongue was most firmly planted in cheek when I came up with the subhead for- as well as the initial question I posed at the start- of this piece:
The 20th Amendment to the Constitution of the United States notes- in its first Section- that [t]he terms of the President and Vice-President shall end at noon on the twentieth day of January... and the terms of their successors shall then begin. Thus, no matter what, the four-year Term of Office of whomever is elected President in 2012 begins at Noon Eastern Standard Time [again, 1700 GMT] Sunday 20 January 2013 and, therefore, at that very moment in time, the keys to the White House- as they were- would have to be transferred to the new occupant (this, of course, only should President Obama not be re-elected).
Most likely, a "private" swearing-in ceremony would be held inside the White House in any event (if it is to swear in Mitt Romney, it would likely be in a more formal setting- perhaps the Oval Office itself [or, instead, might the large East Room of the White House be the setting?]). The problematic issue, instead, is more about that little something known as Protocol: doubtless, at the very start of a potential Romney Presidency, President Obama will be present at such a ceremony but what would Obama's role be come Monday the 21st should Romney have bested him in the election the previous Fall?
Under ordinary (non-20 January on Sunday) circumstances, an outgoing President (whether a candidate in the previous election or not) is physically present as the new President is sworn in (and thereafter delivers his/her Inaugural Address) on the steps of the Capitol: the reason for this (besides evincing an orderly transition from one Presidency to another) is simple-- when the ceremonies begin (typically in the hour leading up to Noon), the outgoing President is still serving as President! The new President, therefore, constitutionally becomes President of the United States while the public Inaugural Ceremonies are still being held.
However (and, again, only if Governor Romney actually be elected this Fall): come Noon on Monday 21 January 2013, Barack Obama would already have been an ex-President for 24 hours... what would his role then be in the public Inaugural Ceremonies in such a case? This would be the real issue...
but only if Obama loses the 2012 Presidential Election-- if, however, the President should win, this whole exercise in speculation has been a moot point, hasn't it?
In addition, we'd then all have to wait until the year 2041 for another such "dilemma" to come along (unless some other Constitutional Amendment yet again, for some reason, adjusting the dates of the start of Presidential and Congressional Terms of Office should be adopted in the meantime, of course) in any event.