Ed Larson: The Constitutionality of Lame-Duck Lawmaking
Edward Larson (Pepperdine University School of Law) has posted The Constitutionality of Lame-Duck Lawmaking: The Text, History, Intent, and Original Meaning of the Twentieth Amendment (Utah Law Review, Vol. 2012, No. 707, 2012) on SSRN. Here is the abstract:
By setting deadlines for the end of 2012, recent congresses left resolution of the budget sequestrations and Bush Era tax cuts to the lame-duck meeting of the 112th Congress. Acting in its final days, the lame-duck Congress passed legislation to avert the so-called fiscal cliff. Two years earlier, the 111th Congress voted on major issues after the November 2010 elections had shifted partisan control of the incoming House of Representatives. On both occasions, echoing arguments made by legal scholars, members of the House of Representatives’ Tea Party Caucus challenged the constitutionality of laws passed by the outgoing congresses. 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. Its sponsors apparently realized that there would be occasions such as in 2012 when a lame-duck congress could best address pressing issues. Although not noted in the article, the popular new movie Lincoln, which came out after the article and suggests that only a lame-duck congress could have passed the 13th Amendment abolishing slavery, illustrates the role of lame duck lawmaking in American history.