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Okay. Responding further...

The 20th Amendment doesn’t explicitly say who is supposed to determine whether or not the President elect has “failed to qualify” by Jan 20th.

Article III, however, says that the judiciary is to decide “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ..... to Controversies to which the United States shall be a Party...”

Congress does not have the authority to determine Presidential eligibility because they have no authority to decide cases and controversies arising from the Constitution - either in Law (as in defining “natural born citizen” or in fact (as in deciding whether Obama meets the definition of “natural born citizen”). Even if there were objections to a state’s electoral votes on the basis of eligibility, Congress could not decide eligibility; they would have to refer it to the judiciary.

Congress WAS explicitly given authority to decide eligibility for their OWN MEMBERS - which would have been the ideal time for the framers to give them authority to decide eligibility for POTUS also, if that was the intent. But I strongly doubt that was their intent because it would violate the whole purpose for having a judiciary that interprets and applies the Constitution. The separation of powers was very important to the framers.

Congress can declare the electoral winner, but they can’t rule whether or not a President elect has “failed to qualify”. They can’t rule that he/she qualified or failed to qualify. Only the judiciary can do that. If there is no case or controversy brought forward the court has nothing they can decide so the presumption is that there is no problem.

But there WERE cases pending for the judiciary to decide this issue, and they were not decided by the time that Jan 20th got here. Including the question of whether Obama had ever actually lawfully been declared the electoral winner, since Cheney failed to ask for objections to the electoral votes as required by law. The court had a case suing Cheney and Congress for breaking the law, and the resulting question is whether the electoral vote was ever lawfully certified since the requirement of the law had not been completed.If it had been a Miranda warning he had “just forgotten” a whole case could be thrown out.

So as of Jan 20, 2009 there was an official legal/judicial question of whether Obama had qualified, meaning on that date there was neither a “yes” or a “no” answer to whether he had qualified. IOW, he had not specifically qualified.

The 20th Amendment has required Joe Biden to “act as President” since then - if, indeed, the electoral vote was lawfully certified. But that could not be known because that was an issue that SCOTUS still had to decide.

This is confusing stuff. This is all IMHO, which is all I can really go by, because the court has refused to decide the cases. What I get from it all is that if SCOTUS refuses to do its duty and decide critical cases like these, they put this nation’s security at grave risk.

It’s like a hockey game with no rules and nobody to officiate. Bedlam.

I don’t see the 20th Amendment mentioning the oath of office at all. The oath of office seems irrelevant to me, for 20th Amendment purposes. The term begins at noon on Jan 20th regardless of the oath of office, and the requirement that the VP elect “act as President” is independent of any mention of oath of office.

The Chief Justice cannot determine eligibility outside of a case. Administering the oath of office is not a ruling that the President elect is eligible. That could only be done by the COURT, not by one individual acting outside the authority of the court. So I don’t understand what difference the oath of office would make.

Sadly, I think it is too late for SCOTUS to undo the damage they’ve done for the 2008-2012 presidential term. They have abdicated their responsibilities and I don’t see them ever doing anything to correct that, unless Congress will impeach Sotomayor and Kagan for the ethics violation of refusing to recuse themselves from cases where they have a glaring personal and financial conflict of interest. Sad, sad thing. We have no Constitution at all, when SCOTUS refuses to interpret it.

So all the questions about this are sort of academic right now.

What we CAN do is make sure that it never comes to this again. The country cannot afford this. We need at least one state to enact an eligibility bill which would create such a clear-cut situation of both standing and justiciability that the courts CANNOT refuse to hear the case on its merits. The bill that I think can do that is at http://butterdezillion.files.wordpress.com/2011/01/final-short-form-eligibility-bill1.pdf .

That’s what needs to be the focus of every person who cares about the Constitution, the rule of law, and the distrust and non-credibiilty that this whole fiasco has spawned.