The Twentieth Amendment and Lame-Duck Sessions

So my Twenty-Sixth Amendment post got a lot of pushback.  (BTW, I didn’t say that I thought that state laws providing that alcohol may not be sold to 20-year-olds are unconstitutional.  I just wanted to raise the question of how you read constitutional provisions.)  The response went something like this.  The text only does what it does.  Reading it more expansively is inappropriate.  Now I agree that this is true if that text is specific (the Fourteenth Amendment is a different animal) and if a broad reading is inconsistent with the original understanding.  So if it’s clear that the Framers of the 26th Amendment did not want to change the age of majority more generally, that’s good enough for me.

Now think about the following issue, which is addressed in an excellent article by John Nagle that came out recently.  The 20th Amendment reset the start of a new Congress to January.  The purpose of this text (as is overwhelmingly clear from the debates in Congress) was to end lame-duck sessions.  People thought that lame-duck sessions were illegitimate and should be abolished.

Why, then, do we still have lame-duck sessions?  (And they do a lot of stuff, BTW.)  The answer is that Congress can still meet between Election Day and the start of January.  Why didn’t the drafters of the Twentieth Amendment do something about that?  It appears that they thought it would be logistically impossible for Congress to convene and do anything before January 3rd (an easier assumption to make in the 1930s).  Or they just thought that nobody would bother since it was clear what the Amendment meant.  Oops.

Let’s suppose that a law is passed in the lame-duck session this Fall and someone brings a challenge to the courts claiming that this law is invalid under the Twentieth Amendment.  It’s easy to see how that claim would be rejected.  Congress can pass a statute in December 2012 under the text of the 20th Amendment and many lame-duck Congresses have enacted laws since the 1930s.  (Indeed, one even impeached a President.)  On the other hand, lame-duck sessions do contradict the original understanding of the 20th Amendment.  What to do?

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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.