December 9, 2010 | WebMemo on Arms Control and Nonproliferation
President Obama has submitted to the Senate for its advice and consent the New Strategic Arms Reduction Treaty (New START), which he signed with Russia on April 8, 2010. But Congress currently sits in a lame duck session, one month after a significant election. The question has been raised: Has the United States Senate ever ratified a major treaty during a “lame duck” session of Congress?
The Spirit of the Twentieth Amendment
In 1933, three-quarters of the states ratified the Twentieth Amendment to the Constitution—often referred to as the “Lame Duck Amendment”—the main purpose of which was to dramatically reduce the period between an election for national offices and the time when the newly elected individuals take office. While recognizing that such sessions were necessary under extraordinary circumstances, proponents of the Amendment argued that laws made by lame duck sessions were less democratically legitimate because those laws were promulgated by individuals different from those chosen by a popular election immediately preceding the session. In cases where there were changes in the control of Congress or the presidency, significant binding actions—such as the ratification of treaties—may violate the principle of the consent of the governed.
The Twentieth Amendment established the current dates of federal office terms and consequently made possible the modern congressional “lame duck” session between the election in November and the new Members’ swearing in on the third day of January.
Such sessions can occur only for numerous reasons resulting from specific actions by the sitting Congress or President. There were numerous such sessions during World War II and the early Cold War (with six in the eight Congresses between 1940 and 1954), but they were sparse for long stretches of time after that. However, since 1994, eight of the last nine Congresses have also called for lame duck sessions, reflecting the evolution of their increased use for ordinary purposes. Since 1933, there have been a total of 18 lame duck sessions, including the current one.
Lame Duck Sessions Since 1933
A treaty is “an Agreement, league, or contract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state.”
The State Department maintains a comprehensive listing of all agreements and treaties currently in force. While considerable research would be required to establish definitively that no treaty has ever been ratified by a lame duck session, it is of note that current research efforts have yet to find any such treaty.
Below is a list of 34 significant United States treaties from 1940 (the year of the first lame duck session after ratification of the Twentieth Amendment) to the present compiled from multiple sources (including the State Department). The first date is the year in which the treaty was signed, and the parenthetical date is the day that it was ratified by the U.S. Senate.
Major U.S. Treaties Since 1940
Treaties v. Executive Agreements
The Senate date of treaty ratification cross-checked with the dates of each lame duck session of Congress confirms the general assertion that no major treaty has ever been ratified by the Senate during a lame duck session of Congress.
Numerous agreements and some treaties have been signed or entered into force during a lame duck session. Note, for instance, that the lame duck session of the 103rd Congress (1994) passed legislation implementing the General Agreement on Tariffs and Trade (GATT), and the lame duck session of the 109th Congress (2006) passed the United States–India Peaceful Atomic Energy Cooperation Act. Both were major acts of legislation based on executive agreements, not treaties. Both executive agreements and treaties are binding in the realm of international law, but only treaties are ratified by the Senate and have constitutional status. While Congress can approve executive agreements, Presidents have often issued executive agreements without congressional approval.
The recent midterm elections created significant ramifications for passing New START during the lame duck session. The ratification of New START by a lame duck Senate would not only ignore the message sent by voters in November but also break a significant precedent, consistent with the principle of consent, maintained by Presidents and Congresses since the passage of the Twentieth Amendment in 1933.
Matthew Spalding, Ph.D. , is Director of, and Anna Leutheuser is a Research Assistant in, the B. Kenneth Simon Center for American Studies at The Heritage Foundation. Matthew Kuchem, an intern in the Simon Center, assisted with the research for this report.
See John Copeland Nagle, “Presidential Terms,” in The Heritage Guide to the Constitution, pp. 419–421.
Richard S. Beth and Momoko Soltis, “Lame Duck Sessions of Congress, 1935–2008 (74th-110th Congresses),” Congressional Research Service Report for Congress, March 2, 2009, at http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0E%2C*P%3CC%3C%23%20%20%20%0A (December 8, 2010).
Henry Campbell Black, Black’s Law Dictionary, 6th ed. (St. Paul, MN: West Pub., 1990), p. 1502. It is important to emphasize the distinction between a treaty and agreements or other understandings that have neither the constitutional requirement for ratification nor the resulting constitutional standing under the laws of the United States.
United States Department of State, “Treaties in Force: A List of Treaties and Other International Agreements of the United States In Force on January 1, 2010,” at http://www.state.gov/documents-/organization/143863.pdf (December 8, 2010).
U.S. Constitution, art. 2, sec. 2, cl. 2.
U.S. Constitution, art. 6, cl. 2.