The last acts of the lame ducks
The last acts of the lame ducks
By John Copeland Nagle a professor at the Notre Dame Law School
Copyright © 2006, Chicago Tribune
Published November 17, 2006
The people have spoken. I'm not especially pleased with what they said, but they have decided whom they want to represent them in Congress. Now our representative democracy responds to the people's voices.
But not yet. The current Congress may provide an encore performance. The newly elected members do not take office until Jan. 3, and meanwhile the current Congress has returned to Washington for a so-called lame-duck session. Reauthorizing expired tax breaks, funding federal agencies, approving domestic eavesdropping and confirming a new secretary of defense and an ambassador to the UN are all on the agenda.
Such a lame-duck session would make the framers of the Constitution turn over in their graves. Except that the graves of these framers are rather fresh. In 1933, we amended the Constitution in an effort to eliminate lame-duck congressional sessions. The 20th Amendment moved the date on which newly elected members of Congress take office to Jan. 3 from March 4. The amendment was an effort to combat the ill effects of lame-duck legislation.
Supporters of the amendment viewed those members who had been defeated in their bid for re-election as unaccountable to the electorate and susceptible to pressure from special interests. The ratification of the 20th Amendment convinced its supporters that they had solved the problems presented by lame-duck Congresses once and for all.
Only that didn't happen. The amendment does not expressly abolish lame-duck congressional sessions; it only shortens the lame-duck period from four months (November to March) to two months (November to January).
Since 1933, Congress has become increasingly comfortable with legislating during the lame-duck period. The most egregious instance occurred in 1980. Immediately after President Jimmy Carter and the Democratic Congress lost on Election Day that November, the defeated Congress returned to enact multiple bills, including laws governing the cleanup of hazardous wastes and resolving longstanding land disputes in Alaska. The Senate even confirmed a judicial nominee who had not even been submitted by Carter until after Election Day: Stephen Breyer, who could thank the lame-duck Senate for his seat on the federal Court of Appeals, a position he occupied until President Bill Clinton placed him on the U.S. Supreme Court in 1994.
Some of these laws and actions may be wise; others are not. The same is true of the agenda for a lame-duck Congress now. But that is not the point. There was no urgency to pass those laws in November 1980. The only urgency was felt by the parties that were about to lose control of Congress. In other words, Congress had to act quickly only because the people had elected a new Congress.
That is not the way it is supposed to work.
"It is an anomaly, to say the least, for a man to hold a commission by which he can write in to laws principles after they have been rejected and repudiated by his constituents," argued one champion of the 20th Amendment in 1932. Another champion claimed that "for a person to continue to represent a constituency after his defeat, is contrary to the whole plan and philosophy of a representative system of government."
We erred by not adequately expressing that understanding of the problems presented by lame ducks when we approved the 20th Amendment. While constitutional law may tolerate laws passed by lame-duck Congresses, constitutional prudence does not. Congress can wait until our newly elected representatives take office in January, just as we expected when we went to the trouble of amending the Constitution 73 years ago.
----------
John Copeland Nagle is a professor at the Notre Dame Law School.
By John Copeland Nagle a professor at the Notre Dame Law School
Copyright © 2006, Chicago Tribune
Published November 17, 2006
The people have spoken. I'm not especially pleased with what they said, but they have decided whom they want to represent them in Congress. Now our representative democracy responds to the people's voices.
But not yet. The current Congress may provide an encore performance. The newly elected members do not take office until Jan. 3, and meanwhile the current Congress has returned to Washington for a so-called lame-duck session. Reauthorizing expired tax breaks, funding federal agencies, approving domestic eavesdropping and confirming a new secretary of defense and an ambassador to the UN are all on the agenda.
Such a lame-duck session would make the framers of the Constitution turn over in their graves. Except that the graves of these framers are rather fresh. In 1933, we amended the Constitution in an effort to eliminate lame-duck congressional sessions. The 20th Amendment moved the date on which newly elected members of Congress take office to Jan. 3 from March 4. The amendment was an effort to combat the ill effects of lame-duck legislation.
Supporters of the amendment viewed those members who had been defeated in their bid for re-election as unaccountable to the electorate and susceptible to pressure from special interests. The ratification of the 20th Amendment convinced its supporters that they had solved the problems presented by lame-duck Congresses once and for all.
Only that didn't happen. The amendment does not expressly abolish lame-duck congressional sessions; it only shortens the lame-duck period from four months (November to March) to two months (November to January).
Since 1933, Congress has become increasingly comfortable with legislating during the lame-duck period. The most egregious instance occurred in 1980. Immediately after President Jimmy Carter and the Democratic Congress lost on Election Day that November, the defeated Congress returned to enact multiple bills, including laws governing the cleanup of hazardous wastes and resolving longstanding land disputes in Alaska. The Senate even confirmed a judicial nominee who had not even been submitted by Carter until after Election Day: Stephen Breyer, who could thank the lame-duck Senate for his seat on the federal Court of Appeals, a position he occupied until President Bill Clinton placed him on the U.S. Supreme Court in 1994.
Some of these laws and actions may be wise; others are not. The same is true of the agenda for a lame-duck Congress now. But that is not the point. There was no urgency to pass those laws in November 1980. The only urgency was felt by the parties that were about to lose control of Congress. In other words, Congress had to act quickly only because the people had elected a new Congress.
That is not the way it is supposed to work.
"It is an anomaly, to say the least, for a man to hold a commission by which he can write in to laws principles after they have been rejected and repudiated by his constituents," argued one champion of the 20th Amendment in 1932. Another champion claimed that "for a person to continue to represent a constituency after his defeat, is contrary to the whole plan and philosophy of a representative system of government."
We erred by not adequately expressing that understanding of the problems presented by lame ducks when we approved the 20th Amendment. While constitutional law may tolerate laws passed by lame-duck Congresses, constitutional prudence does not. Congress can wait until our newly elected representatives take office in January, just as we expected when we went to the trouble of amending the Constitution 73 years ago.
----------
John Copeland Nagle is a professor at the Notre Dame Law School.
posted by Carlos T Mock @ 2:15 PM
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