THE CONSTITUTIONALITY OF LAME-DUCK LAWMAKING: THE TEXT, HISTORY, INTENT, AND ORIGINAL MEANING OF THE TWENTIETH AMENDMENT

Abstract

Echoing arguments made by two prominent legal scholars, members of the House of Representatives’ Tea Party Caucus challenged the constitutionality of laws passed by the outgoing 111th Congress after the November 2010 elections. Such “lame-duck lawmaking” violates the Twentieth Amendment, they charged. These claims have become part of the partisan rhetoric. This Article examines the text, history, intent, and meaning of the Amendment in light of arguments that its overriding intent, and perhaps enforceable duty, is to bar lame-duck Congresses from conducting regular business after the elections. The extensive history of congressional deliberation on the Amendment shows that the sponsors’ principal goals were to advance the date for the installation of a new Congress and administration, abolish the old short session of Congress, and assure that a newly-elected Congress resolves disputed presidential elections. These purposes are captured in both the text of the Amendment and the original meaning of the arguments made by its supporters. The constitutional history, sponsors’ intent, and original meaning for the Amendment do not in any way call into question the constitutionality of lame-duck lawmaking. The Twentieth Amendment is a clear, precisely worded, and virtually self-enforcing provision that substantially advances democratic norms of popular governance.