Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

Amendment XX, Section 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.

Terms of the President and Congress

Prior to the 20th Amendment, the Constitution did not specify the beginning and ending dates of the terms of the President, Vice President, and Congress.  The Constitution defined the length of the terms of the various offices, and Congress ultimately enacted laws to set March 4 as the term starting date of all elected federal officeholders.   Our nation’s earliest federal elections were held prior to December of each even numbered year, and in 1845, Congress set the first Tuesday following the first Monday of November of each even numbered year as a uniform federal election date.  As a result, officeholders remained in office after the November elections for about four months until the 4th of March of the following year.  During the 18th century, such officeholders began to be called ̎lame ducks ̎.

From the late 18th century and into the 20th century, the lack of efficient and speedy transportation made the election process necessarily slow.  Today’s ability to almost instantaneously report election returns did not exist in the days without electricity, telephones, electronic voting devices and the Internet.  It could take days or weeks of horseback travel by electors from remote areas of the country to assemble to cast that state’s electoral votes for President and Vice President.  It could take as long for members of Congress and the elected executives to then travel to Washington to take office.  Thus, the four month ̎lame duck ̎ period between election day and the start of new terms of newly elected (or re-elected) officeholders was a practical necessity.

Sometimes either Congress or the President took actions during those ̎lame duck ̎ periods that the public, or incoming officeholders, felt were unfair and that should have waited until the newly elected representatives could take office.  For example, the famous case of Marbury vs. Madison, in which the U.S. Supreme Court claimed its authority to interpret the Constitution, was a dispute over a staff appointment made by President John Adams after President Thomas Jefferson was elected, but before Jefferson took office.

Transportation and technology advances ultimately reduced the need for a long transition period after an election.  Further, public concern about legislation enacted during ̎lame duck ̎ sessions of Congress, motivated Nebraska Senator George W. Norris to propose the 20th Amendment.  After over a decade of debate, and immediately preceding Franklin D. Roosevelt’s first election as the 32nd president, Congress passed the resolution proposing the amendment on March 2, 1932.  The states ratified the amendment by January 23, 1933, the shortest period of time between a congressional proposal of an amendment and its ratification by three-fourths of the states.

The amendment, rather than a change in the law by Congress, was necessary because it shortened the terms of incumbent officeholders, the length of whose terms the Constitution had been specifically set.  The amendment shortened the ̎lame duck ̎ period by half to about 2 months, with Congress taking office on January 3 and the President taking office on January 20 after each of their elections.  The first president affected by this change was Franklin D. Roosevelt following his second election in 1936.

Legislative history shows that the purpose of the 20th Amendment was to not only shorten the 4 month ̎lame duck ̎ period, but also to prevent  ̎lame duck ̎ sessions of Congress.  However, the 20th Amendment contains no specific language to prohibit ̎lame duck ̎ sessions, and Congress has met in many such sessions since after the states adopted the amendment.  Political debate about lame duck ̎ sessions, however, has been raised on several recent occasions.

On November 13, 1980, a ̎lame duck ̎ President Jimmy Carter nominated future Supreme Court Justice Stephen G. Breyer as a justice of the United States Court of Appeals for the 1st Circuit, and the ̎lame duck ̎ Senate confirmed the appointment in December, 1980.  In December 1998, the House of Representatives voted to impeach President William J. Clinton during a ̎lame duck ̎ session.  Some argued that these actions violated the spirit, if not the letter, of the 20th Amendment, but no one challenged the actions in court.

In 2000, some discussed the potential interplay between the 20th Amendment, and the 12th Amendment, which requires that the House of Representatives select the president if no candidate receives a majority of the electoral votes cast for president.  During the time in which the presidential election results between George W. Bush and Albert Gore, Jr. were still undetermined, some scholars questioned whether a ̎lame duck ̎ House of Representatives could select the president if neither Bush nor Gore received a majority of the electoral votes, or whether the issue would have to wait until the newly elected House of Representatives convened.

While the 20th Amendment’s original intent has been publicly debated, there are no reported court cases involving the amendment.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 21, 2012

Essay #66

2 replies
  1. Barb Zakszewski
    Barb Zakszewski says:

    As much as we want Obama out of the White House in November, I think his “lame duck” period could be one of the most dangerous to this Nation. Of course, an Obama 2nd term will most likely destroy this Nation. We have to ready for either.


Trackbacks & Pingbacks

  1. […] Constituting America, an organization that is dedicated to educating the public and the youth in America about the U.S. Constitution is presenting a new project, the Constitutional Amendments in 90 Days.  I’m honored to have participated by preparing two essays on different amendments.  Here’s the link to my essay on the 20th Amendment, which sets the commencement of the terms of the President and Congress.… […]

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