Legal Commentary

Lame-Duck Hunting

By Jonathan H. Adler

The 20th Amendment provides that the terms of Senators and members of Congress end on January 3.   Its passage in 1932 severely curtailed the potential for Congress to enact measures in lame-duck sessions by limiting the time between elections and the existing Congress? expiration to approximately two months or less. Seventy-five years ago, travel to and from Washington was more difficult, and legislators were not eager to disrupt their holiday schedules for non-emergency legislation. Even wartime Congresses that held session year-round were quite restrained during the periods between elections and the seating of a new Congress.

That was then. Now, laments Yale Law School?s Bruce Ackerman, legislators see lame-duck sessions as a time to consider serious measures free of political accountability.

After 1954, there was a 16-year interlude in which lame-duck sessions were unknown, but they reemerged on four occasions during the 22 years between 1970 and 1992 ? without any emergency justification. Since 1994, lame-duck meetings have become routine. With a single exception, every Congress has returned after the election.They have been making very big decisions: passing NAFTA in 1994, impeaching President Clinton in 1998 and creating the Department of Homeland Security in 2002. These large initiatives serve as precedents for the coming lame-duck consideration of such weighty matters as permanent tax relief and the New START arms treaty with Russia.

It may be too late to call off the impending lame-duck session, but this practice need not continue into the future. Ackerman believes Congress ?should enact legislation prohibiting lame-duck sessions except in national security emergencies.?

An end to non-emergency lame-duck sessions would be a welcome addition to other legislative process reforms Republicans have proposed. I wonder whether a prohibition on non-emergency lame-duck sessions could be enforced. Even if adopted as part of the legislative rules, like the filibuster rules in the Senate, nothing would stop a future Congress from reversing course. Nonetheless, passing a prohibition on non-emergency lame-duck sessions would be a valuable symbolic measure, and could help restore the norm that lame-duck legislation is extraordinary.

There?s more from Ackerman at Balkinization here.

Full post as published by The Volokh Conspiracy on November 13, 2010 (boomark / email).