Presidential candidates like to talk about what they will do on their first day in office. Here’s Newt Gingrich, from last night’s debate:
John, I just think if you’re going to raise immigration, I want to make the point that on the very first day that I’m inaugurated, I will issue an executive order to the Justice Department to drop the lawsuits against South Carolina, Alabama and Arizona.
Here’s Mitt Romney, from the 10/11 New Hampshire debate:
And on day one, I have indicated, day one, I will issue an executive order identifying China as a currency manipulator.
And here’s Romney’s website:
On Inauguration Day, he will submit a jobs package to Congress consisting of at least five major proposals and will demand that Congress act on the package within 30 days, using every power at his disposal to ensure its passage. He will also take immediate and specific steps within his sole authority as president by issuing a series of executive orders that gets the U.S. government out of the economy’s way.
Seeing as day one is exactly one year from today, it’s worth pointing out that there might be something of a messaging problem with all these Day One actions next year: January 20th, 2013 is a Sunday. And by tradition, America does not hold public Presidential inaugurations on Sundays.
So whoever is President next year will almost certainly be sworn in privately on January 20th, but will not take the oath of office publicly on the west front of the Capitol until Monday, their second day in office. Which raises the question: if you want to do something on your “first day” next year, do you do it Sunday afternoon or Monday afternoon?
If you do it Sunday, then you are definitely doing it on your first day. But it would be quite awkward to have a big signing ceremony or other publicity event (which the new President would almost assuredly like to do for something like an executive order stripping away parts of the ACA), when you haven’t taken the public oath, and many in the public might not realize you are even President. On the other hand, doing it on Monday would you mean you weren’t really doing it on the first day, giving the partisan press a nice opportunity to mock you out of the gate.
Obviously, this is not a big deal, but I think it’s kind of an interesting historical aside. So, now, how about that history. Where did this all come from?
The first time an inauguration day fell on a Sunday was in March 1821, when President Monroe was to begin his second term. He consulted Chief Justice Marshall on whether the inauguration should be pushed off to Monday, to account for the Christian Sabbath. Prior to the 20th amendment, it was an open question as to whether the term of the president ended at noon on March 4th or at the stroke of midnight at the conclusion of March 3rd.
That may seem like an odd unknown now, but it did not particularly bother the antebellum political class. But it did bear directly on the Sunday inaugural issue, as it provided a logic for the delay of an inauguration. Marshall’s reading was that the term technically started at midnight, and thus advised in a letter to Secretary of State Adams that while a President might in an emergency situation take the oath right at the stroke of midnight on the 4th, the usual practice was to take it around noon on the 4th, meaning there had traditionally been a 12 hour window with no one able to legally execute the office.
Marshall further argued that the Constitution only says that the President must take his oath before he “enters on the execution of his office,” and so a delay is not fundamentally improper. He also noted that an interval of several hours or even a few days without an executive authority would not be problematic, although it would be preferable to take the oath as soon as conveniently possible. And so, Marshall’s bottom line was in favor of waiting until Monday, unless some official duty should require Sunday. Monroe accepted this advice, and was sworn in for his second term on Monday, March 5.
Of far greater potential concern were the two following cases (1849 and 1877) in which the Sunday inaugural fell upon a President-elect, rather than upon a sitting President commencing his second term. In 1849, outgoing President Polk was waiting at the Capitol to sign bills on the night of March 3rd. House and Senate action continued past midnight, but Polk signed the legislation at 6am on March 4, under the constitutional theory that he had taken the oath around noon in 1845, and thus his four-year term did not expire until the same time on March 4, 1849.
The only problem with this theory is that it places the term with the oath, meaning that when Taylor did not take the oath until noon on March 5, he might argue his term would last until March 5, 1853. Congressional leaders dismissed this theory, arguing that Taylor could have taken the oath any time after noon on the 4th, when his term — but not his ability to execute his office — officially began. These events locked-in the “noon on the 4th” reading of when the terms began and ended under the old calendar.
In 1877, the winner of the disputed election was not even known until March 2, and even then there was much continued dispute over whether Hayes was the rightfully winner. The Sunday inaugural complicated this — if Grant’s term ended at noon on March 4 but Hayes did not take the oath until March 5, GOP leaders worried that the gap might give the Tilden supporters room to make some monkey business. Out of an abundance of caution, the private Hayes oath was administered on Saturday night, March 3.
Since 1877, Sunday inaugurations have only fallen on second-term Presidents, and public inaugurations were held on Monday, for Wilson (1917), Eisenhower (1957), and Reagan (1985). In each of those cases, the President took a private oath on Sunday, and then participated in the public (but technically unnecessary) ceremony on Monday. Wilson was conducting diplomatic business on Sunday — the Zimmerman telegram had been revealed three days earlier — and chose to leave no doubt in anyone’s mind that he could lawfully discharge the office int the afternoon, despite the opinion of the State Department that he could conduct his business while putting the oath off until the Monday public ceremony. Eisenhower and Regan followed suit, in precaution of anyone questioning their competence to discharge the office on Sunday.
It, of course, remains to be seen if we will have a first or second-term president next year. In either case, it seems an iron-clad lock that the oath will be administered prior to noon on Sunday, so there is absolutely no disruption in the ability to execute the office. Now that the 20th amendment begins and ends the terms precisely at noon, there’s no gray area; if the President is not sworn in prior to noon, no one can execute the office at 12:01. For instance, the Obama inaugural ran a bit late, so he didn’t take the oath until 12:06. And so even for public inaugurals on the 20th, the President-elect may choose to take the oath prior to noon in private, such that there were be a legal President at exactly noon if the public ceremony does not run right on time. (Of course, absent such a move, the president-elect could always quickly take the oath if an action had to be made while the band was playing or whatever was going on that ran through 12pm).