President for a Day

Atchison_David_Rice_-_Plattsburg_MO_3Today marks the 161st anniversary of the one-day Presidency of the United States of David Rice Atchison. Atchison’s story, once well-known, has been reduced to an item of trivia for American history buffs.

By common agreement, the Presidential term of James Knox Polk ended at noon on March 4, 1849. March 4 was a Sunday that year, and the decision was made to delay the inauguration of Zachary Taylor, the hero of the recently concluded Mexican-American War and the newly elected President, until Monday, March 5. Polk completed his final presidential duties on Sunday morning and then departed from Washington that afternoon.

Who then was President between noon on March 4, when Polk departed, and noon of March 5 when Taylor finally took the oath of office?

Under the presidential succession statute in effect in 1849, the President Pro Tempore of the Senate was to assume the office of President of the United States if neither the President nor the Vice-President were able to do so. During the 30th Congress, David Rice Atchison, a senator from Missouri, had been the President Pro Tem of the Senate, and on the morning of March 5, 1849, he was reelected to the same post for the 31st Congress. Legend has it that Atchison spent the day of March 4 in bed, recovering from his participation in several parties held on the evening of March 3.

At the time, no one seemed to have noticed that the office of President had fallen vacant, and there is no contemporary evidence that Atchison himself suggested to anyone that he was the President. However, later in life — Atchison was only 32 on March 4, 1849, and he lived until 1886 — he frequently claimed that he had been President of the United States for one day.

The question of whether or not Atchison had actually been President was raised by a handful of commentators in January 2009, when Chief Justice Roberts botched the oath of office taken by President Obama. Obama retook the oath, correctly, the following day, but if a proper recitation of the oath is a prerequisite to becoming President of the United States, then who was President on January 20, and who was president on January 21? (Since Vice-President Biden had been sworn in at that point he presumably would have been next in line.)

There are, however, a number of problems with the claim that Atchison was President of the United States on March 4, 1849. First of all, he failed to take the oath of office, and the Constitution specifically states that the President must either swear or affirm the prescribed oath.

Even more problematic is the fact that Atchison was technically not the President Pro Tempore of the Senate on March 4, 1849. Under the practices of the day, the office of President Pro Tempore of the Senate was understood to expire when the current Congress recessed for the final time. The first order of business for the new Congress was to elect a new President Pro Tem, although it was not unusual for the Senate to reelect the previous holder of the position.

The Thirtieth Congress recessed on March 3, 1849, so Atchison’s term ended the day before Polk’s presidential term expired at noon. Moreover, his new term as President Pro Tem of the Senate during the 31st Congress did not begin until the morning of March 5. Consequently, if Atchison was eligible to serve as President, it was only during the time between his swearing in on the morning of March 5, and Taylor’s taking the oath of office at noon.

Actually, by this logic, Atchison’s already truncated presidency would have ended with the swearing in of Vice-President Millard Fillmore shortly before noon, and Fillmore’s presidency would have ended a few minutes later when Supreme Court Chief Justice Roger Taney swore in President Taylor. Ironically, Atchison terminated his own presidency (under this theory) when he, as the newly elected President Pro Tem of the Senate, swore in Vice-President Fillmore. (Fillmore, of course, became President “again” in July 1850, when Taylor died in office.)

As it turns out, the Sunday presidential inauguration problem has occurred a number of times in American history. Logically, it should occur once every 28 years or so, since there are seven days to the week and inaugurations occur every four years.

The problem first occurred on March 4, 1821, when James Monroe was President. His inauguration for his second term was delayed for one day, and no one at the time appears to have noted any gap in the presidency. John Gaillard of South Carolina, who served as President Pro Tem continuously from January 25, 1820, to December 2, 1821, never claimed to have been President on March 4, 1821.

The second incident was the one involving Taylor and Atchison. The third came in 1877, following the Hayes-Tilden race, the most contested presidential election in American history. Although the results of the election were not finally determined until Friday, March 2, Hayes, for religious reasons, refused to be sworn in on Sunday, March 4. Several Republicans, including outgoing President Ulysses S. Grant, feared that disgruntled Democrats might attempt to disrupt the inauguration ceremonies, so they encouraged Hayes to take the oath of office as soon as possible. Consequently, Hayes took the oath of office on Saturday, March 3, the day before the end of Grant’s term. He also took the oath a second time (without incident) at a public ceremony on Monday, March 5.

In 1917, Woodrow Wilson delayed his second inauguration until March 5, but as had been the case with Monroe a century earlier, there was no evidence of contemporary claims that the presidency had fallen vacant.

In 1933, the 20th Amendment to the Constitution moved the presidential inauguration date to January 20. The first conflict with the new date came on Sunday, January 20, 1957. President Eisenhower, who had been reelected the previous November, took the oath of office privately on Sunday, and then was publicly inaugurated the following day. Ronald Reagan took the same approach when the date of his second inaugural fell on Sunday, January 20, 1985. Either President Obama or his replacement will have to deal with this issue in three years, as January 20, 2013, will fall on a Sunday.

The logical answer here is that the newly elected President becomes President on the appointed day, whether or not he (or she) has an inaugural ceremony or takes the required oath. The supposed problem of a gap in the presidency in 1849 should remind us that for all of their wisdom, the Founding Fathers did not think of everything, and there are times when the Constitution requires us to use common sense to implement its central provisions.

A picture of the Plattsburg, Missouri tombstone of David Rice Atchison—which proclaims him “President of the United States for One Day”—can be found here.

I am indebted to Sean Samis for calling this anniversary to my attention earlier today.

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New Student Scholarship Discusses Conditional Resignations by Federal Judges and Patentability of Genes

Allison Luczak has published a new student comment in the Law Review on conditional resignations by federal judges. According to Luczak, conditional resignations – resignations of judges that are expressly conditioned upon certain terms or events such as the appointment of a successor by the President then in office – reflect the increased politicization of the appointments process. Although the power to submit a conditional resignation can be viewed as an aspect of life tenure, which in turn preserves judicial independence, Luczak points out that it may also subvert separation of powers because certain conditions may encroach upon the Executive and Legislative Branches’ powers of nomination and confirmation. Her comment discusses both the possibility of unconstitutional conditions and potential regulatory mechanisms to curb abuses.

The new issue of the Law Review also features a note by Ying Pan on the patentability of genes. Pan argues that although tens of thousands of gene patents have been granted over the past two decades, the Supreme Court’s 2007 decision in KSR Int’l Co. v. Teleflex, Inc. should have the effect of limiting the future patentability of genes based on the requirement of nonobviousness. The note concludes with a set of proposed criteria that would bring the USPTO’s examination guidelines for gene patents into compliance with KSR.

Both of these pieces can be accessed at the Law Review’s website.

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Federalism, Free Markets, and Free Speech

2not even-handed justiceThe Supreme Court decision in Citizens United v. FEC strikes down as unconstitutional a federal law that prohibits corporations and unions from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of candidates for office.  The majority opinion, written by Justice Kennedy, ignores hundreds of years of Supreme Court history in interpreting the subjects of federalism, free markets, and free speech.  In its place, Justice Kennedy presents a textualist interpretation of the First Amendment that is divorced from any history or context.  Justice Kennedy engages in the sort of “faux originalism” (syn. “fake,” “artificial,” “false”) that has been criticized by Judge Richard Posner.  Kennedy places a historical glaze on his own personal values and policy preferences, and calls the result the “original understanding” of the First Amendment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.”

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