The Twentieth Amendment and Lame-Duck Sessions

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Actually, there is a very good argument that the 20th Amendment was not originally expected, intended, or meant, to abolish all lame-duck lawmaking. Rather, it was meant to abolish the lame duck session of Congress– i.e., the second congressional session of each Congress, which didn’t even begin until the lame-duck period.

    Recall that before the Twentieth Amendment, the default date for the start of the Congressional session was “the first Monday in December.” We may assume that the 20th Amendment was meant to do something much broader– and solve a modern problem– because we forget how wacky the old problem was.

    Edward Larson from Pepperdine has an excellent article on all of this history coming out soon in the Utah Law Review.

  2. Rich Rostrom says:

    Mr. Baude has a good point.

    But we should also recall that the general election of all Representatives and Senator on November 2-8 of even numbered years was not established till fairly late in our history. Many states elected Representatives in odd numbered years – after the previous session of Congress ended, and before the new Congress’s first session.

    Until the 17th Amendment, Senators were elected whenever state legislators got around to it. It’s not clear when the legislature could elect a Senator for the next term. (That may have led to some lively disputes between lame-duck legislatures and their successors.) In many cases the election was not made till after the old session was over.

    So the lame-duckedness of those Congressional sessions was not so clear as it became later.

  3. Brett Bellmore says:

    Why not just amend the Constitution again, to clearly prohibit lame duck sessions? Granted, Congress won’t do that. But a convention might.