Flags will fly at full-staff at Trump inauguration, despite Biden order. Is it legal?

American flags at the U.S. Capitol will be raised to full-staff on Inauguration Day — despite a presidential order that they be kept at half-staff to honor the late former President Jimmy Carter.

Is this legal? It’s complicated, according to one expert.

Speaker of the House Mike Johnson announced in a Jan. 14 post on X, formerly Twitter, that the stars and stripes will fly at full-staff for President-elect Donald Trump’s swearing-in ceremony “to celebrate our country coming together.”

The flags will then be returned to half-mast the following day, he said.

The directive flies in the face of President Joe Biden’s order that American flags at federal government buildings be lowered to half-staff for 30 days to pay tribute to Carter, who died on Dec. 29.

Johnson’s announcement also comes after Trump expressed dissatisfaction about the prospect of flags being lowered at his inauguration on Jan. 20.

“The Democrats are all ‘giddy’ about our magnificent American Flag potentially being at ‘half mast’ during my Inauguration,” he wrote in a Jan. 3 post on Truth Social. “Nobody wants to see this, and no American can be happy about it. Let’s see how it plays out.”

What the US Flag Code says

The U.S. Flag Code — which is part of federal statute — outlines detailed instructions for when and how the American flag should be flown, including on the occasion of a president’s death and on Inauguration Day.

The code states that, upon the death of a president or former president, the flag “shall be flown at half-staff on all buildings, grounds, and naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories” for 30 days.

“In other words, this would be how the flag would need to be displayed to be consistent with the law, even absent any executive order,” Cary Coglianese, a law professor at the University of Pennsylvania, told McClatchy News.

The code also states that the flag “should be displayed” on a number of days, including Inauguration Day, Independence Day and Veteran’s Day.

These parts of the code “are not in any tension with each other,” said Coglianese, who is also the director of the Penn Program on Regulation.

“The flag ‘should’ be displayed on Inauguration Day,” he said. And when this falls within 30 days of the death of the president or former president “it ‘shall’ be displayed at half-mast.”

He noted that “shall” means mandatory, while “should” is more of a recommendation.

So,“Johnson’s order is definitely inconsistent with the mandatory language,” Coglianese said. But, whether or not it could be classified as illegal is a trickier question.

“This law is what we can call a coordinating statute, as it is trying to create common standards, coordinating the display of the flag (a unifying symbol) among a citizenry that shares common values, rather than imposing regulatory obligations aimed at trying to force people to behave in a manner that they would otherwise not have an incentive to behave,” Coglianese said.

Further, the U.S. Flag Code is not enforceable by law and there are not any penalties associated with violating it.

Lastly, the sitting president holds the authority to make changes to the code whenever he or she deems appropriate.

So — had Johnson not acted — Trump could have directed that the flags be returned to full-staff immediately after taking the oath of office, Coglianese said.

This story was originally published January 14, 2025 at 6:08 PM.