Presidential Terms

Section 1. The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives 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.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Amendment XX

The Twentieth Amendment appears simply to embody minor structural changes to the Constitution. That the amendment was ratified by the states more quickly than any other constitutional amendment before or since supports this impression of an uncontroversial technical revision. So does the absence of litigation surrounding the meaning of the amendment. But the Twentieth Amendment became part of the Constitution only after decades of congressional debate, and its meaning was debated as recently as the impeachment of President William Jefferson Clinton by the United States House of Representatives in December 1998.

The six clauses of the Twentieth Amendment are readily divided into three pairs. The first two sections shorten the "lame-duck" period after an election and before the new officials take office. The next two sections govern various presidential succession questions. The final two provisions are standard provisions specifying the manner of approval and the date of its coming into effect. The amendment was, in large part, the creation of Nebraska Senator George W. Norris, who championed it for over a decade until Congress approved it in March 1932 and three-fourths of the states ratified it by January 1933. Throughout its consideration by Congress and the states, it was known as "the lame-duck amendment."

The first two sections respond to the initial purpose for the amendment, which was the concern about lame-duck sessions of Congress. The framers of the Twentieth Amendment, however, wanted to eliminate such lame-duck sessions of Congress altogether, not just shorten them. Legislation enacted by lame-duck Congresses had been roundly criticized as undemocratic because the people had already selected the successors of the representatives who were enacting bills in lame-duck sessions. The text of the amendment failed to prohibit future lame-duck sessions, though, and that purpose was forgotten soon after the states ratified the amendment in 1933. Congress has met in lame-duck sessions thirteen times since the Twentieth Amendment became law. In recent years, a lame-duck Senate confirmed Stephen G. Breyer to a federal appeals court judgeship in 1980, and the House of Representatives impeached President Clinton after the 1998 election, despite calls from a number of scholars that such an action contradicted the spirit of the Twentieth Amendment. The original understanding of the Twentieth Amendment has thus become a policy argument against lame-duck congressional sessions, but no one has asked the courts to enforce that understanding.

There is another question that the framers of the Twentieth Amendment anticipated but which the language of the amendment fails to resolve. According to the Twelfth Amendment, the House of Representatives chooses the President if no candidate receives a majority of the electoral votes. Thomas Jefferson, John Quincy Adams, and Rutherford B. Hayes were all elected by the House—more specifically, the lame-duck House, not the newly elected House. The supporters of the Twentieth Amendment wanted to ensure that any future selections of the President would be made by the new Members of the House. The text of the amendment does not express that purpose, and the question of which House could act was one of many unanswered constitutional questions discussed while the presidential election of 2000 was still in dispute.

Sections 3 and 4 address an issue unrelated to the concern about lame-duck Congresses, namely, the circumstances in which the President or the President-elect dies. In the words of Senator Norris, Sections 3 and 4 ensure that "there can never arise a contingency where the country will be without a chief magistrate or without the method of selecting a chief magistrate." The nation has never had the occasion to put Senator Norris's confidence to the test. A number of scholars, however, have imagined circumstances in which the selection of a new President would remain unclear, notwithstanding Sections 3 and 4. For example, Professor Akhil Amar has asked, "What happens if, God forbid, the person who wins the general election in November and the electoral college tally in December dies before the electoral college votes are officially counted in Congress in January? If the decedent can be considered ‘the President elect' within the meaning of the Twentieth Amendment, then the rules would be clear, but it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the ‘President elect.'" The solution, proposes Amar, is for Congress to enact a statute that would (1) postpone the election if a major candidate dies or becomes incapacitated shortly before election day and (2) authorize the counting of electoral votes for candidates who died on or after election day. Thus far, Congress has failed to heed such advice.

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John Copeland Nagle
John N. Matthews Professor of Law
Notre Dame Law School