Saturday, September 22, 2007

David Atchison, President!

I love it! The American Presidents Blog has a post pointing out that Senator David Atchison of Missouri has an argument -- albeit not a winning one -- that he was president of the United States for twenty four hours.

President Polk's term expired at midnight March 3, 1849. Zachary Taylor refused to be sworn in as the new president on March 4, 1849, which fell on a Sunday. Vice President elect Fillmore did not take the oath of office on March 4 either. They were both sworn in on Monday March 5. In the interim, so the argument goes, the presidency fell to Senator David Rice Atchison of Missouri, who was then President pro tempore of the Senate.

I agree that the argument ultimately fails. If Taylor did not become president on March 4 because he did not take the oath of office that day, well, neither did Atchison. Still, getting there is half the fun, so let's look at at some of the issues.

First, did President Polk's term end at midnight on March 3, 1849? The answer is "yes," but it takes a few steps to get there.

The Constitution did not originally specify the date on which presidential terms began or ended. Article II, Section 1, Clause 1 merely stated that the president "shall hold office during the term of four years."

The March 4 date was not inevitable. On September 13, 1788, after the Constitution was ratified by the requisite number of states, the Continental Congress issued a "Resolution of the Congress, of September 13, 1788, Fixing Date for Election of a President, and the Organization of the Government Under the Constitution, in the City of New York." As the title suggests, that resolution fixed the date on which the new government would come into effect:
Resolved That the first Wednesday in Jany next be the day for appointing Electors in the several states, which before the said day shall have ratified the said Constitution; that the first Wednesday in feby next be the day for the electors to assemble in their respective states and vote for a president; And that the first Wednesday in March next be the time and the present seat of Congress the place for commencing proceedings under the said constitution.

The "first Wednesday in March next" turned out to be March 4, 1789. But did that mean that the presidential term began that day?

Not necessarily. The first Congress came into existence on March 4, 1789, and its term therefore ended March 3, 1791. But Congress did not certify Washington's election until April 6, 1789, and he took the oath of office on April 30. There were, then, three dates from which to choose. (Query: who, if anyone, was president between March 4 and April 30, 1789?) Arguably, one of April dates would have been preferable. If future presidential elections went to the House (as the election of 1800 did), then the new House would select the president, rather than the old, lame duck representatives.

Congress did not choose that option. In 1792, Congress passed a law that endorsed the March 4 date. Section 12 of "An Act relative to the election of a President and Vice President of the United States, and declaring the Officer who shall act as President in case of Vacancies in the offices both of President and Vice President," 1 Stat. 239 (March 1, 1792), provided:
Sec. 12. And be it further enacted, that the term of four years for 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 Twelfth Amendment, ratified in 1804, also referred to the March 4 date in specifying what would happen if the election devolved to the House of Representatives:
And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.

It appeared, then, that President Polk's term began on March 4, 1845 and that it lasted only four years -- until the end of the day March 3, 1849. He was not president on March 4, 1849.

The more interesting question is whether anyone was president on March 4, 1849. I'm not prepared to give a definitive answer. Here are two considerations that point in opposite directions.

The case in support of the position that Zachary Taylor was president on March 4, 1849 begins with the Twelfth Amendment:
1. The Electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate; 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 . . ..

Zachary Taylor had received "the greatest number of [Electoral] votes for President," and the number of Elector votes he received was "a majority of the whole number of Electors appointed." Under the Twelfth Amendment, he was the president.

In addition, the same 1892 statute discussed above seems to buttress Taylor's case. Section 12, already quoted, provided that Taylor's "term of four years" commence[d] on March 4. Moreover, Section 11 provided:
Sec. 11. And be it further enacted, That the only evidence of a refusal to accept or of a resignation of the office of President or Vice President, shall be an instrument in writing declaring the same, and subscribed by the person refusing to accept or resigning, as the case may be, and delivered into the office of the Secretary of State.

This language certainly seems to assume that, if you're elected president, come March 4 you are president, unless you have formally refused to accept or resign, in the manner specified. Zachary Taylor did not do so.

The case in favor of an "interregnum" also rests on the Constitution. Article I, Section 1, Clause 7 specifies that the president must take the oath of office in order to "enter on the execution of his office:"
7. Before he enter on the execution of his office, he shall take the following oath or affirmation:

"I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

This would suggest that Zachary Taylor had no presidential powers on March 4, 1849. He could not sign or veto legislation, act as Commander in Chief, make treaties, appoint ambassadors, etc.

I therefore come down squarely in the middle. On March 4, 1849, Zachary Taylor's term of office began, and he was the president; but he had no presidential powers!

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