Constitutional Text and Discontinuity

So what does the Constitution say about discontinuity? Let’s start our analysis at what might seem like an odd place (strike that, what is an odd place), an email from the Clerk of the Australian Senate:

I have always thought that, as your Constitution has no prorogation or dissolution, and as both of your Houses are continuing bodies (notwithstanding that all of the House seats turn over at the same time), it makes little sense to speak of different congresses, sessions or terms, and the convention of bills dying at the end of a “term” also has no basis.

Email from Harry Evans, Clerk of the Senate, Parliament of Australia, to Seth Barrett Tillman (Nov. 4, 2004), reproduced in Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110thSenate Enact a Bill Passed by the 109thHouse?, 16 Cornell J. L. & Pub. Pol’y 331 (2007).

I presume by “term” Mr. Evans was referring to the “term” of a congress, rather than to the terms of individual members of congress. The 20thamendment, after all, provides that “the terms of Senators and Representatives [shall end] at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” This language is explicit in distinguishing a legislator’s term from that of his or her successor (or predecessor).

The original Constitution, on the other hand, says less about this subject:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

                   * * *

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one vote.

It is true, as Evans observes, that this language says nothing explicitly about “new” or “separate” congresses or congressional terms. It also says nothing about members of the House serving for terms of precisely two years (indeed, it does not expressly say they serve for limited terms at all). One might even draw a negative inference from the fact that senators are chosen “for six years,” but no statement is made that representatives are chosen “for two years.”

One could plausibly read this text as merely requiring that each state hold a congressional election sometime during each even-or odd-numbered year (absent congressional action pursuant to section 4 of Article I, the choice would be up to each state). Once the election were held, the newly elected member might assume a seat immediately, even if the House were in session. Alternatively, this might not occur until (1) the next convening or assembly of the House; (2) the next assembly or meeting of Congress: or (3) the first assembly or meeting of Congress in the next calendar year. The text does not tell us which of these alternatives is the correct one, or whether there is no single correct answer and it is up to somebody (Congress or the states, presumably) to decide as a policy matter.

Similarly, the text does not say when the terms of House members end. The Constitution does provide specifically that senate seats are vacated at two year intervals from the date of first assembly. Again, one mightdraw the inference that the absence of corresponding language for representatives is of some significance. Perhaps the seats of House members are vacated when their successors are elected (or sworn in) and thus will vary depending on the state election schedule. Perhaps the seats are vacated when the House adjourns sine die in the calendar year during which congressional elections are held (which might or might not be the same for all states). In short, it is not clear, based on the text of the (original) Constitution alone, when House seats turn over or if they in fact all turn over at the same time.

Nevertheless, from 1789 to 1932 (when the 20thamendment was proposed), the Constitution was uniformly interpreted to require all terms for House members to begin and end at the same time and to last for exactly two years. Although the beginning point was fixed not by a constitutional provision but by an act of ordinary legislation (one by the Confederation Congress), Congress believed that it lacked the constitutional power to alter this congressional schedule no matter how inconvenient or downright pernicious it was found to be. See generally Edward J. Larson, The Constitutionality of Lame-Duck Lawmaking: The Text, History, and Original Meaning of the Twentieth Amendment, 2012 Utah L. Rev. 707, 715-17 (2012).

Specifically, in 1788 the Confederation Congress directed that the proceedings of the new government under the newly-ratified Constitution would commence on the first Wednesday of the following March. This date, which happened to be March 4, 1789, was thenceforth considered as the commencement date for the terms of all federal elected officials (president, vice president, senators and representatives), which terms would also expire on March 4 (of each odd-numbered year, in the case of representatives). This produced the odd result that congressional terms began on March 4 of each odd-numbered year, but the newly-elected congress did not ordinarily assemble until nine months later on the first Monday in December, which was the default date specified by the original Constitution for the annual meeting of Congress.

Another inconvenient result of this schedule was the so-called “short session” of Congress. When Congress assembled on the first Monday in December of an even-numbered year, its proceedings could last no longer than about three months, i.e.,until March 4 of the following year. At that time the terms of all House members and one-third of senators expired, and the incumbents no longer had any constitutional authority to hold their seats or perform legislative activities.

According to Evans, however, both houses of Congress, and therefore Congress itself, are continuing bodies. Professor Tillman agrees. See Seth Barrett Tillman, Defending the (Not So)  Indefensible, 16 Cornell J. L. & Pub. Pol’y 363, 368 n.22 (2007) (“I believe the House and the Senate are both continuing bodies.”). So, apparently, does Professor Prakash. See Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law35 (Jan. 2018) (“there is no [constitutional] rule that dictates that ‘Congress’ necessarily expires . . . [n]or does any text specify that, when terminated, an old Congress immediately segues into a new Congress”); id. at 36 (“one might conclude that while members come and go due to deaths, resignations, and expulsions, Congress itself never changes [and] there is (and always has been) but one, uninterrupted Congress, albeit composed of different members across time.”).

If Evans, Tillman and Prakash were correct that Congress is continuing in nature, the “short session” would not have posed much of a problem. Congress could have simply continued to sit past March 4, with two-thirds of the Senate and all re-elected incumbents unaffected, while the seats of retiring or defeated incumbents would be assumed by their newly-elected representatives. Thus, despite the expiration of congressional terms, the business of Congress could have continued without interruption. This would have been a regime of legislative continuity.

Congress, however, has never understood the Constitution to permit it to operate in such a fashion. From the very start, Congress has understood that each two-year congressional term constitutes a separate congress, with the First Congress occurring from March 4, 1789 to March 4, 1791, the Second Congress from March 4, 1791 to March 4, 1793, and so on. See Prakash, supra, at 35. As a result, all legislative business had to be completed by March 4 of each odd-numbered year, when the “old Congress” expired. See S. Rep. 72-26Fixing the Commencement of the Terms of the President and Vice President and Members of Congress4 (72d Cong. 1stsess.) (Jan. 4, 1932) (explaining the “very undesirable legislative condition” resulting from the “so-called short session,” which “enables a few Members of Congress to arbitrarily prevent the passage of laws simply by the consumption of time”); Larson, supra, 2012 Utah L. Rev. at 715-34 (describing over a century of efforts to eliminate the short session).

It is true, as Professor Prakash emphasizes, that the Constitution does not explicitly declare that each congress expires or dissolves every two years or that there is a distinction between the current congress and past congresses. SeePrakash, supra, at 35. But if one recognizes that the temporal limitation of a legislative body was a fundamental practice not only of Parliament but of the colonial/state legislatures, it seems entirely reasonable to read the Constitution’s references to “Congress” as incorporating these concepts. For example, the declaration in Article I, section 1, that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives” may be interpreted as an implicit reference to the currentcongress, just as the “President” implicitly refers to the currentpresident. See generally Lawrence B. Solum, Surprising Originalism: The Regala Lecture11-12 (draft May 8, 2018) (discussing the importance of “impliciture” and other forms of “pragmatic enrichment” in reading constitutional text); cf. Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. L. & Pub. Pol’y at 336 n.11 (conceding that the language of Art. I, §1 “might support contemporaneous action as an implicit requirement of bicameral action”).

Alternatively, one might conclude that the original Constitution is silent on the question of legislative discontinuity and that the practice of treating each two-year term as a separate congress is a “mere” constitutional gloss placed upon the text from 1789 to 1932. This position becomes much harder to take, however, when one considers the adoption of the 20thamendment in 1932-33.

Again, it is true, as Prakash takes pains to point out, that the 20thamendment never expressly “dictates that a ‘Congress’ commences on January 3 of an odd year at noon and terminates on the same day and time two years later.” Prakash, supra, at 35. It is indisputable, however, that this is precisely what everyone involved in proposing and ratifying the 20thamendment understood would be the effect of that amendment. This, moreover, was not an incidental effect but part of the amendment’s core purpose.

Part of the objective of the 20thamendment was simply to eliminate the short session, which was inconvenient and inefficient for the reasons already mentioned. The other objectives related to the importance of assembling a “new Congress” as soon as possible after it was elected and ensuring that it, rather than the “old Congress,” was making important decisions. See S. Rep. No. 72-26, at 4 (“No reason has been given why a new Congress elected at a general election to translate into law the wishes of the people should not be installed into office practically as soon as the results of the election can be determined.”).

As the House report accompanying the proposed amendment explains, “[u]nder our present system, the old Congress expires on the 4thday of March of the odd years, and the first meeting of the new Congress is on the first Monday of the following December.” H.R. Rep. No. 72-345, Proposing an Amendment to the Constitution of the United States 3 (72d Cong. 1stsess.) (Feb. 2, 1932). The proposed amendment shifted this schedule so that the old Congress expired at noon on January 3 of each odd-numbered year, and the meeting of the new Congress (unless changed by law) would occur at the same date and time.

Supporters of the amendment argued that this revised schedule was not merely more efficient and convenient, but more consistent with the principles of representative democracy:

The only direct opportunity that the citizens of the country have to express their ideas and their wishes in regard to national legislation is the expression of their will through the election of their representatives at the general election in November. During the campaign that precedes this election the great questions demanding attention at the hands of the new Congress are discussed at length before the people and throughout the country, and it is only fair to presume that the Members of Congress chosen at that election fairly represent the ideas of a majority of the people of the country as to what legislation is desirable.

S. Rep. No. 72-26, at 3. These views mirror the arguments for legislative discontinuity discussed in my last post.

Professor Tillman argues that the idea of each congress expiring or dissolving was based on an inappropriate attempt to map British parliamentary practices onto a very different American legislative system. See Tillman, Defending the (Not So) Indefensible, 16 Cornell J. L. & Pub. Pol’y at 368 n.22, 376 n.46, 377 n.50, 379 n.56. However, the framers of the 20thamendment were well familiar with a century and a half of legislative practice under the Constitution, and they did not see it the way Tillman does. They believed that the Constitution needed to be amended to bring American practice more in line with that of other countries with respect to the assembling of a new legislature. Representative Celler, for example, remarked: “In no country other than ours does 13 months elapse between election and convocation of parliament. The practice in Great Britain, Canada, Australia, and New Zealand has been to make the interval between elections and the summoning of parliaments as short as possible.” 75 Cong. Rec. 3828 (1932). Another member remarked:

Mr. Chairman, I was wondering, as Winston Churchill sat over in the rear of the House a few minutes ago, what his emotions would be if, in the Parliament of England, he and his colleagues sat around for 13 months after election before they took their seats for legislative work at the next regular session. There, the English people throw out an administration upon their own vote, returning the new Parliament that then comes in and legislates, while we wait 13 months unless called here in extra session.

Id. at 383 (Rep. Frear).

In short, the framers and ratifiers of the 20thamendment clearly understood that the amendment would establish noon on January 3 of each odd-numbered year as the time when an old congress would expire and a new congress would begin. To deny that the constitutional text has this effect would seem to be an exercise in “literalism” rather than “textualism.” See Solum, supra, at 11 (explaining the difference).


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