Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

It's time to amend the 20th amendment

By Jack M. Balkin

Part of the reason we are in the fix we're currently in is because of the 20th Amendment, which does two things: It sets inauguration day at January 20 and Jan. 3 as the date for a new Congress to convene, unless Congress sets a different date, which this time will be January 6. I have certainly dwelt on the costs of the hiatus between election and inauguration, and I won't treat that subject any further in this particular post. But consider a story just filed in the Times, entitled "Republicans Stand Firm, Putting Bailout in Doubt." Mitch McConnell, the Senate minority leader, has announced his opposition to the House bill. The important point, of course, is that it really doesn't matter if the House bill could get a majority vote in the Senate because it has become customary practice now to require 60 votes in order to bring most votes to the floor, a thoroughly undemocratic feature of our political system that cannot be blamed directly on the Constitution except insofar as it licenses each House to vote its own rules of procedure.

So the situation is this: Any vote in the Senate will obviously count fully the Republican lame-duck senators who were either booted out of office (as in Alaska, North Carolina, New Hampshire, and Oregon) or decided to retire and were replaced by Democrats (as in New Mexico, Virginia, and Colorad0). Illinois is notoriously now without a senator because of president-elect Obama's resignation, and it is obvious that there will be no new senator from Illinois for a while. I note, incidentally, that the Bush Administration has gotten behind the House bill (once it was stripped of an anti-pollution measure the Administration objected to), so this is further evidence, if any were needed, that George W. Bush has zero, nil, nada, zilch politcial authority remaining even for members of his own party.

It is, frankly, indefensible that lameducks have the power to block this bill from coming to a vote. This is the equivalent of what Prime Minister Harper has done in Canada, and at least some Canadians, for all of their famous mild-mannerness, are marching in the streets. But we're prepared to tolerate it and treat it as simply a reality we must live with now and, presumably, into the indefinite future. I note, for what it's worth, that the Bush Administration has in fact gotten behind the House bill (once it was stripped of an anti-pollution section), so the Senate Republicans are demonstrating, as if further demonstration were necessary, that George W. Bush has no, zero, nada, nil political authority left even within his own party. He has become truly irrelevant, save for the powers vested in him by the Constitution, where he may continue to be all too relevant.

So why isn't there a call to emulate our praiseworthy ancestors and to do what they had the wisdom to do in 1933, i.e., amend the Constitution and make it more congruent with contemporary necessity? It's too late to save us today, but, obviously, there's no reason in the world to think that the future will also look rosier than the present with regard to post-election, pre-January events. There is also no reason in the world to delay the seating of newly elected representatives and senators beyond a week after the election. If there is no need for what in the alternative would be a lame-duck session, then they can devote their time, after being sworn in, to looking for places to live and deciding whom to hire to staff their offices. But if there is such a need, then we'd have a politically legitimate Congress instead of the pathetic group of lame-ducks who can bask in their complete unaccountaibility to the American public. Why shouldn't Americans of all political pesuasions call on their so-called leaders to support a new 28th Amendment that would address at least this particular problem, even if, contrary to my own wishes, it maintained silence on inauguration day, the electoral college, and how to reconstitute a government following a catastrophic attack?

Full post as published by Balkinization on December 11, 2008 (boomark / email).