For a Congress that has squandered more time than any preceding legislative body on programs the American people oppose, the 11th has been the model of industry in the current lame duck session. Yesterday, Harry Reid’s Senate voted on the DREAM Act, which would have given children of illegal immigrants a fast track to legality, and the repeal of Don’t Ask, Don’t Tell, which bans gays from openly serving in the military. Today it’s on to the START arms reduction treaty.

All of this is of course so much political posturing, paying back debts and assuaging angry constituencies, which flies in the face of the mandate the American people delivered in its midterm vote. But a bigger question is whether any of this legislation is constitutional.

An article by David Fahrentold in today’s Washington Post notes that lame duck sessions of Congress violate the spirit if not the letter of the Constitution.

For the letter of the law you need but look at the 20thAmendment, which was ratified on January 23, 1933. In essence, the amendment was meant “to kill off sessions like this—in which defeated legislators return to legislate.”

In the article Fahrentold quotes John Copeland Nagle, a University of Notre Dame legal scholar who is well versed in this obscure amendment. According to Prof. Nagle, this year’s lame duck session has enjoyed

the most ambitious legislative agenda that’s ever been pursued in a lame-duck session since the 20th Amendment.

Nagle notes further that this type of far-reaching agenda “is exactly what the 20th Amendment was designed to stop.”

The need for an amendment curtailing the legislative power of outgoing lawmakers can be traced to 1801. That year, members of the Federalist party used their final days in office to help appoint a number of judges. The same problem reared its ugly head again in 1922, when President Warren Harding and lame duck Republicans attempted to ram through unpopular legislation after having been defeated.

Writes Fahrentold:

Opponents said this was un-democratic: These sessions seemed to violate the ever-popular Washington rule that ‘elections have consequences.’ Finally, Congress passed—and the states ratified—the 20th Amendment.

But the devil was in the details of the new amendment, which didn’t actually abolish lame duck sessions of Congresses. Instead the law changed the end date of Congress’s legislative term from March to early January.

“At that time,” Fahrentold writes, “it was inconceivable that lawmakers would journey back to Washington to meet for a few weeks after Thanksgiving.” Then again in 1933 air travel was still a rarity, and the the jet engine was in its infancy. The article quotes Yale University law professor Bruce Ackerman as saying:

It takes a lot of time to go from a district in Texas by train to Washington, D.C. Who’s going to schlep there?

Nowadays the answer of course is “everyone.” Which brings us current. Time for Congress to revisit the wording of the 20th Amendment?

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