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Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX, Section 4:

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The Twentieth Amendment (ratified in 1933) addresses two issues—lame duck Congresses and presidential succession. In regards to the latter, the amendment provides for a number of different eventualities with the basic theme being an attempt “to smooth out additional succession wrinkles.” Akhil Reed Amar, “Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap” Arkansas Law Review, vol. 48, p. 215 (1995).

Section 4 addresses a longshot eventuality but one that is certainly not inconceivable. For this section to be invoked, two things must happen. First, a presidential election would have to produce no clear winner because none of the candidates had an Electoral College majority. In this circumstance, the Constitution empowers the House of Representatives to determine the winner. Second, one of the major candidates would have to die before the election controversy was resolved. The second has never happened but the first has occurred twice in our nation’s history.

In 1824, four candidates divided the Electoral College votes with Andrew Jackson securing the most at 99. Since none had a majority, the House of Representatives chose from the top three candidates (as required by the Twelfth Amendment) and essentially between Jackson and John Quincy Adams (who received 84 Electoral College votes). The House selected Adams 13-11 (voting was by state delegation). See John Sacher, “The 1824 Election: The Corrupt Bargain?” Franklin’s Opus, February 24, 2012 at http://franklinsopus.org/2012/02/the-1824-election-the-corrupt-bargain/.

In 1876, Samuel Tilden won the popular vote for president with 51% to 48% for Rutherford Hayes. Tilden, however, received only 184 Electoral College votes, one shy of the needed majority. Twenty Electoral College votes from four States were in dispute; precisely the number Hayes would need to become president. Congress created an independent Electoral Commission with fifteen members—five senators, five representatives and five justices of the U.S. Supreme Court. The Commission met in the Supreme Court’s chambers and heard arguments about the various state Electoral College votes. The Commission voted to give Florida’s votes to Hayes 8-7. The legislation creating the Commission required both houses of Congress to reject Commission rulings if the rulings were to be invalidated. Thus, while the House rejected the Commission rulings on Florida, and later Louisiana, Oregon and South Carolina, since the Senate voted to uphold them, the Commission’s decisions stood and Hayes was awarded all of the disputed Electoral College votes making him president. A last minute filibuster by House Democrats failed and in the early morning of March 2, 1877 Hayes was awarded the presidency with a one-vote Electoral College majority. The inauguration was held three days later. See “Finding Precedent: Hayes v. Tilden: The Electoral College Controversy of 1876-1877” Harper’s Weekly at http://elections.harpweek.com/09Ver2Controversy/Overview-1.htm.

Assuming this scenario was to occur again and one of the candidates tragically dies, section 4 empowers Congress to enact legislation that would determine what should happen.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

May 24, 2012

Essay #69

Guest Essayist: David J. Bobb, Director, Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., and lecturer in politics

http://vimeo.com/42675773

Amendment XX, Section 3:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified, and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

On January 6, 2001, Vice President Al Gore presided over his own political funeral.  On that day, a joint session of Congress certified the final Electoral College vote that put George W. Bush into the White House.  Vice President Gore had the unenviable task of wielding the gavel at the certification of his Republican foe’s victory.

Imagine now not a political funeral at the end of a presidential election, but an actual funeral—for a president-elect—in between the November election and the January certification of electoral votes.  That’s the main scenario the third section of the Twentieth Amendment is designed to address.

Largely unrelated to the first two sections of the Twentieth Amendment, which shortened the time of the lame-duck presidency, the third section of the amendment has prompted, it seems, more unanswered hypothetical scenarios than it has answered.  Although it sought to address gaps left by previous efforts to address presidential secession, this section (and the fourth that follows) still leaves much to constitutional and legislative conjecture.

As legal scholar Akhil Amar pointed out in Senate testimony in 1994, the main problem with the Twentieth Amendment, left unanswered by the Twenty-Fifth or any legislation on the matter, is that “it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the President elect.”  The very term “President elect” is left ambiguous, then, with the result, according to Amar, of a possible confusion about the electoral status of the decedent.

What’s worse, Amar further wonders, is what would happen if the presumed presidential election victor dies before the Electoral College meets in December?  “What is a faithful elector to do here?” Amar queries.  The elector gets no guidance from the Constitution, although Congress did refuse to count three electoral votes cast for candidate Horace Greeley, who passed away after he earned the votes but before the College had met.

Push the dismal early death scenario even earlier, and the problems mount.  What if a candidate perishes just before the November election?  Or what would happen if both president-elect and vice-president elect are simultaneously slain, in advance of the congressional certification of the electoral count?

The scenarios are endless, and while the Presidential Succession Act of 1947 tried to plug holes that existed, there are numerous scholars today that are convinced that more legislative fixes are still required.  In one notable recent move, the Continuity of Government Commission—a joint effort of the American Enterprise Institute and the Brookings Institution—offered suggested remedies to problems in presidential succession that since their 2009 proposal have not been adopted by Congress.

Despite the questions that abound about this amendment’s third section, there exists a notable irony that almost came to fruition just after the passage of the Twentieth Amendment.  As the Continuity of Government Commission’s report details, had President-elect Franklin D. Roosevelt not escaped an assassin’s bullet that claimed the life of the mayor of Chicago, the Vice President-elect, John Nance Garner, would have assumed office under the terms of the Twentieth Amendment’s third section.

David J. Bobb is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C., and lecturer in politics.

 

May 23, 2012

Essay #68

Guest Essayist: Marc Lampkin, Shareholder at Brownstein Hyatt Farber Schreck and graduate of the Boston College Law School

Amendment XX, Section 2:

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day.

The XXth Amendment is fairly straightforward.  Often referred to as the “Lame Duck Amendment” the XXth Amendment’s purpose is to update gaps in the original draft of the Constitution setting the time and dates for the Congress and the President — in particular the amendment changed when terms of elected federal officials begin and end in order to line their terms beginning and ending with the election process.

The amendment’s purpose is to limit the chances that when Congress meets the legislators casting the votes were duly elected, rather than retirees or those who had failed to win re-election.

The primary sponsor of the XXth Amendment was Senator George W. Norris of Nebraska.  Senator Norris believed it to be his greatest legislative achievement.  It was passed on March 2, 1932.

When the Constitution was originally ratified, the outgoing Congress under the Articles of Confederation had set March 4, 1789 as the date for which the new federal government would begin.  On an ongoing basis the Constitution provided that the Congressional session would begin on the first Monday in December.

In addition, the second session would begin a month after the election and continue until March 3.  This had the effect of allowing Members to serve during the second session even if they had retired, were defeated, or simply had not chosen to run for re-election.

Initially the schedule made sense as it accommodated the travel and weather difficulties that faced the new nation.  At the time of the founding, roads were bad and travel long distances was often difficult.  Having four months from Election Day to the start of the session seemed prudent.  However, over time, the improvement in road building and the use of trains and boats made such a delay unnecessary.

In addition, the time delay had other pernicious effects.  When President Roosevelt was first elected he was required to wait four months before he could begin any steps to respond to the Great Depression.   Many across the nation believed that the provisions in the Constitution setting the dates for a 19th century world were particularly unhelpful in the 20th century.

This led to the push for passage of the XXth Amendment.

In addition to limiting “lame-ducks” from setting policy at the national level, the XXth Amendment also means that there was a shorter period between the election and the convening of the new Congress and that the outgoing President would have time to consider the outgoing Congress’ legislation.

Marc Lampkin is a Shareholder at Brownstein Hyatt Farber Schreck and is a graduate of the Boston College Law School

May 22, 2012

Essay #67

Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX

1: The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

2: The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

3: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

4: The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

5: Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

6: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Congress proposed the Twentieth Amendment in March 1932 and it was ratified 327 days later in January 1933. The lack of controversy surrounding the amendment’s proposal and ratification has been matched by a lack of attention to it since ratification. Unlike some other, even seemingly innocuous provisions in the Constitution, there have been no major U.S. Supreme Court cases interpreting it or significant political controversies surrounding it.

This despite the fact that it was intended to effect an important change in American political practice.

Professor Nina Mendelson explains that the main purpose of the amendment was to
increase “the responsiveness of government to the people’s will as expressed through the election.” Nina A. Mendelson, “Quick Off the Mark? In Favor of Empowering the President-Elect” 103 Northwestern University Law Review Colloquy 464, 472 (2009). The way this was to be achieved was by abolishing “lame duck” sessions of Congress.

The lame duck sessions were created by the interaction of two Constitutional provisions.

First, Article I of the Constitution originally provided that Congress would convene once a year in December (article I, section 4, clause 2). Second, prior to the Twentieth Amendment, presidential, vice-presidential and Congressional terms began in March, four months after the presidential elections. The date for the commencement of the new Constitutional officers had been set by the First Congress. The Constitution itself specified the length of the terms so, in order to be faithful to the Constitutional mandate regarding term length, newly elected officials would take office two, four and six years from the date in March the First Congress had appointed.

These two provisions taken together resulted in a long session in election years during which the president and members of Congress could continue to enact legislation and perform other functions after the election, even when those officials had been rejected by voters.

There were some obvious concerns with the lame duck sessions. For instance, the problem of accountability of elected officials to those they are meant to represent when an election has been held and an official has been rejected by voters but that official is still making law. Officials who have not been retained in office are also likely to be susceptible to other pressures, such as the need to find work following their exit from office. See John Copeland Nagle, “A Twentieth Amendment Parable” 72 N.Y.U. Law Review 470, 479 (1997).

Because the lame duck sessions were created by Constitutional provisions shortening the terms was not possible without amending the Constitution itself.

That is exactly what the Twentieth Amendment was meant to do. The Senate Judiciary Committee report on the proposed amendment specifically said one “effect of the amendment would be to abolish the so-called short session of Congress.” Congressional Research Service, Annotated Constitution: Twentieth Amendment at http://www.gpoaccess.gov/constitution/pdf2002/038.pdf.

By abolishing the lame duck sessions, the Twentieth Amendment would resolve the problems associated with them and increase the responsiveness of elected officials to their constituents.

The amendment would accomplish this by doing away with the mandatory December session, moving it instead to the subsequent January 3rd when the amendment called for the new Congressional session to begin. The president would be inaugurated shortly thereafter. If, for instance, the November election had not resulted in a clear majority in the Electoral College, the newly elected members of Congress, rather than the old, would select the new president.

The problem is that while the framers of the Twentieth Amendment did not “expect the outgoing Congress to meet during the lame-duck period from Election Day in November until January 3” that is, in fact, what happened. Nagle at p. 485. So, even after the Twentieth Amendment was ratified, lame duck sessions continue to be held with outgoing officials enacting legislation, spending money and bailing out industries. Presidents have been particularly active during this period, issuing pardons, signing treaties and appointing judges.

The failure of the Twentieth Amendment to do away with lame duck session illustrates a truth the Founders knew well—the law cannot supply what is lacking when self-restraint fails.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

Guest Essayist: Scot Faulkner, Executive Director, The Dreyfuss Initiative on Civics

Article 1, Section 5, Clause 3

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Documenting public processes have been part of governing since the rise of early civilizations.  From the Sumerians in 2500 BC, to ancient Egypt and Babylon, governments have kept journals of their actions and public meetings. 

The Founding Fathers knew the importance of maintaining a Journal of Proceedings from the English House of Commons. James Wilson, a member of the Committee on Detail which compiled the provisions of the draft Constitution, was a follower of the great British parliamentary scholar Sir William Blackstone.  He quoted Blackstone’s Oxford 1756 lectures, which underscored the importance of a public record for holding officials accountable, “In the House of Commons, the conduct of every member is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection.”

The Constitution’s “Journal of Proceedings” wording flows from the Articles of Confederation. In March 1781 the Continental Congress approved the following provision: “…and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.”

But what is the Journal?  Every day the Congress approves the “Journal” of the previous session.  This is the official outline of actions taken during the previous meeting of each Chamber, like a set of minutes.  It is codified in Section 49 of Thomas Jefferson’s 1812 Parliamentary Manual that governs Congressional operations.  Members of Congress do not approve the Congressional Record.  That transcript of House and Senate proceedings has a colorful history.

The transcribing of Congressional debate was begun by private publishers.  House and Senate proceedings, roll calls, debates, and other records were recorded and published in The Debates and Proceedings in the Congress of the United States (1789–1824), the Register of Debates in Congress (1824–1837), and the Congressional Globe (1833–1873).

During the 36th Congress [December 5, 1859 to March 3, 1861] it was decided that federal funds should be used for transcribing Congressional proceedings and that the Government Printing Office should publish the verbatim record. The Congressional Globe was contracted to provide stenographers in the House and Senate Chambers. In 1873, the Globe’s contract was not renewed, and the Congressional Record was born.  The Clerk of the House and the Secretary of the Senate now oversee documenting and transcribing the verbatim proceedings of their respective chambers.

The Congressional Record is still not an accurate verbatim transcript of the proceedings and debate for each Chamber.  Members routinely insert remarks and documents after the fact.  While these “revised and extended remarks” help Members explain their actions, they are considered “secondary authorities” when it comes to determining legislative intent.  Secondary authorities are generally afforded less weight than the actual texts of primary authority during Judicial review.

The chronicling of Congress has come almost full circle.  While the Congressional Record remains the official transcript of proceedings, CSPAN, a nonprofit private entity, provides live coverage of each Chamber.  The cameras are owned and maintained by the Architect of the Capitol, while their operations and broadcasts are operated by staffs of the Chief Administrative Officer in the House and the Secretary of the Senate.  CSPAN receives the signal and airs it on its various cable television channels.  Live House broadcasting began on March 19, 1979 while Senate coverage commenced on June 2, 1986. 

Article 1, Section 5, Clause 4

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The Constitutional Convention of 1787 made sure the two Congressional chambers had equity when it came of the operations of the Legislative Branch.  Neither the House nor the Senate may adjourn for more than three days (excluding Saturdays, Sundays, and holidays) without the concurrence of the other Chamber. The formal end of a Congress is when the Legislative Branch adjourns “Sine Die” (from the Latin “without day”) meaning “without assigning a day for a further meeting or hearing”.  The Constitution [Article 2, Section 3] also grants the President the authority to summon the Congress for a special session if circumstances require.  The Twentieth Amendment to the Constitution also sets a formal start and end time for each Congress.

These various provisions have led to numerous unintended consequences.

One of the first instances was when the Southern states seceded from the Union.  They deprived the sitting Congress of a quorum.  In order to continue governing, President Abraham Lincoln issued the very first Presidential Order on April 15, 1861, Executive Order 1.

The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks. However, unlike a recess, an adjournment creates a new legislative day (this is more relevant to Senate proceedings).

Certain things happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc., but there are also consequential things.  In the Senate, during the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.

Any formal break in Legislative Branch activity also opens the door for a President to take certain actions.  This includes making appointments which require Senate confirmation, and “pocket vetoing” legislation.  A pocket veto means that the Congress cannot override the veto because it is not in session.  An adjournment of the Legislative Branch also allows the President to reconvene Congress for a specific action [Article 2, Section 3].  Congressional leaders have devised ways to avoid inadvertently unleashing Presidential activism.

The Congress can take a break from legislative activity, and still avoid a formal recess or adjournment, by meeting in a “pro forma” session. Pro forma means “for the sake of formality”.  In recent years pro forma sessions have prevented Presidents from making recess appointments, and in the case of President George W. Bush in 2008, deprived him calling a special session to reauthorize the Protect America Act and the Foreign Intelligence Surveillance Act.

As long as a Member convenes either the House or Senate to formally open and close a session there is no recess or adjournment.  Members sometimes compete to see how fast they can conduct a pro forma session.  The record is currently held by Senate Jack Reed of Rhode Island who completed the task in 12 seconds.

Scot Faulkner served as the Chief Administrative Officer of the U.S. House of Representatives.  He earned a Masters in Public Administration from American University, and B.A. in Government from Lawrence University.  He is the Executive Director of The Dreyfuss Initiative on civics www.TheDreyfussInitiative.org