The Onion is Right. Thanks to Justice Sotomayor, there will constitutionally be two Vice President Bidens.

January 19th, 2013

A friend asked about what impact the 20th Amendment has Justice Sotomayor’s disappointing decision to reschedule Vice President’s oath from noon (as the Constitution says) till 8 a.m. so she can attend her separation-of-powers-important book signing. Here are my quick thoughts.

The 20th Amendment provides:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

So what happens if Biden is sworn in before his term official ends?

In Marbury v. Madison, Chief Justice Marshall held that the actual delivery of the commission is a mere formality. I think the oath should be viewed in the same way, as a formality. Whether it happens now or later doesn’t really matter. What would seem to matter is the electoral college votes being counted by the President of the Senate.

Article II, Section 1 provides:

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President.

This was amended by the 12th Amendment, but the import is the same.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed . . . The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed.

The Vice President’s term becomes legitimate after the votes are counted. And, it cannot begin until the previous term ends, which according to the 20th Amendment is January 20, 2013. So Vice President Biden’s oath will be effective. As Article II, section I provides:

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

He just needs to take the oath before he starts his duties. Likewise, Article VI only says that the Vice President “shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” It doesn’t say when it has to happen.

But, isn’t he still the Vice President from the last oath? His term isn’t over till noon on January 20, 2013.

bidencover-articleInlineIndeed, under the Constitution there will be two Vice President Bidens betwen 8 a.m. and noon on January 20, 2013. The Vice President Biden sworn in in 2009, and the Vice President Biden sworn in 2013.


Well played, The Onion. Well, played.


So Biden definitely owes Sotomayor one. As he wrote in his book, “I ain’t the kind of guy who forgets his debts. Next time we meet there’s a tallboy of ice cold Beast on me. And if you’re a lady, I know a few tricks to repay you with interest, if you catch my drift.”

I hear there’s a nice dive bar that Biden likes near the Union Square Barnes & Noble.

Update: Joe Biden continues to prove that the Onion is our finest source of news.

At the beginning of his speech, Biden began praising his soon to be re-inaugurated boss and let slip, “I’m proud to be President of the United States,” before stopping himself as nervous laughter from the audience turned into wild cheers. Biden corrected himself and said what he had intended: “I’m proud to be Vice President of the United States, but I’m prouder to be President Barack Obamas vice president.”

Let’s take stock. Two Vice President Bidens and one President Biden. That’s a menage a biden.