The Presidential Terms Amendment

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.

—Brian C. Kalt

Introduction

The main purpose of the Twentieth Amendment was to change the timing of presidential and congressional terms and of congressional sessions. The amendment also empowered Congress to provide for the handling of two constitutional conundrums: (i) the lack of a President-Elect to take the oath on Inauguration Day and (ii) the deaths of candidates in “contingent” elections in which no presidential or vice presidential candidate wins a majority of electoral votes and the winners are chosen by Congress.

Historical Background

The original Constitution specified that Congress had to assemble at least once per year on the first Monday in December unless Congress legislated a different day.¹ (See Essay No. 23.) However, the Constitution did not specify a particular day on which congressional and presidential terms would begin. After the Constitution was ratified, the outgoing Articles of Confederation government issued a resolution providing that the new government would start on March 4, 1789.² As a matter of practice, March 4 became the day on which future congressional and presidential terms would start.³

By the twentieth century, this schedule was causing difficulties. Because elections were held early in November, the new Congress typically would not start its first session until December of the next year, thirteen months after being elected.⁴ This delay dampened the force of the electorate’s expression of its will. Moreover, voters in an election might cast out members of the old Congress or even change which party held the majority.

Regardless of the sentiments that the voters had expressed, however, the old Congress would convene in December—a month after the election—for a “lame-duck” session that ran until the term ended in March. Presidents who were not reelected also would remain in power as unaccountable lame ducks until March. Aside from this accountability problem, the second session of the term was necessarily short, which made it too easy for obstructionists to block legislation by running out the clock.⁵ Congress would look to amend the Constitution to fix these problems.

The Congressional Debates

In 1922, during a contentious lame-duck session, Senator George Norris (R–NE) proposed a constitutional amendment to reform this calendar.⁶ In February 1923, the Senate overwhelmingly approved Norris’s proposal. The Senate’s resolution, with only minor changes, would become Sections 1 and 2 of the Twentieth Amendment. Under the proposal, congressional terms would no longer start on March 4, and sessions would no longer start by default in December. Instead, they would start on the same day in early January. Thus, the first session of a two-year term would begin on the first day of the term, two months after the election, rather than 13 months after the election. The second session of a term would begin ten months before the next election instead of one month after it and would no longer have to be conducted in such haste and with such unaccountability to voters.⁷

The Senate resolution also moved the date for the presidential term up to January, although several days after the congressional term began. This decoupling was directed at reforming contingent elections. The Twelfth Amendment provides that if no presidential candidate wins a majority of the Electoral College, the House of Representatives chooses a President from among the top candidates. Similarly, if no vice presidential candidate wins a majority, the Senate chooses a winner from among the top candidates. Under the original Constitution, with congressional and presidential terms starting on the same day, the old, possibly repudiated, lame-duck Congress conducted these contingent elections.⁸ By starting the President’s term after Congress’s term, Norris’s proposal was designed to have the new Congress, “fresh from the people,” conduct any contingent elections.⁹

The resolution had general support in the House but was opposed by the House leadership, so it was never brought up for a vote.¹⁰ The Senate passed similar versions of Norris’s proposal again in 1924, 1926, 1928, and 1929, but each time the House either never voted on the resolution or considered only an objectionably altered version of it.¹¹ Although final passage in the House was out of reach in those years, the House Committee on Elections enhanced the proposal in its drafts, adding most of what would become Sections 3 and 4.

The House proposal that became Section 3 was designed to reform the Twelfth Amendment’s contingent-election provisions. If the presidential election were thrown into the House, the Twelfth Amendment required the House to make its choice before the start of the presidential term. However, if no choice was made when the President’s term began, the Vice President would act as President for the entire term.¹²

In 1926, the House committee softened the deadline by proposing that the Vice President would act as President after the term began only for as long as it took the House to make a choice. Once a President was chosen, the Vice President would no longer act as President. The Twelfth Amendment also had a worrisome gap: What if the Senate failed to select a Vice President before the deadline? In that case, who would become Acting President? The House committee’s version gave Congress the power to provide for such a double vacancy.

The committee would use those same principles to handle several other situations. First, if the President-Elect died, the Vice President–Elect would replace him. Second, Congress could flexibly legislate a solution if both the President-Elect and Vice President–Elect died. During debate on the House floor, this coverage was extended beyond just death. The new language spoke of a failure to qualify. This catch-all term was meant to encompass disability, an unresolved election dispute, disqualification, or any other scenario that could cause a new term to begin without anybody able to be sworn in as President.¹³

Finally, the House committee added what would become Section 4. This provision empowered Congress to address the death of a contingent-election candidate.¹⁴ At every other point in the election process, a presidential or vice presidential candidate who died could be replaced by his party, but in a contingent election, if one of the finalists died, the Constitution would not allow him to be replaced, effectively disenfranchising the dead candidate’s supporters.¹⁵ With Section 4, Congress was empowered to legislate a solution to this problem.

The logjam in the House was finally broken after Democrats won a majority in the 1930 midterm elections. The Senate again easily passed Senator Norris’s simple resolution, and this time the House passed its enhanced version, also by an overwhelming margin. A conference committee set January 3 as the date for Congress’s term to start and January 20 for the President’s term to begin. The committee also provided under Section 5 that the amendment would become effective on October 15 of the year it was ratified. The Senate readily accepted the House’s additions in Sections 3 and 4. The conference committee also included Section 6, a seven-year deadline for ratification similar to one the House’s version had included. On March 1 and 2, 1932, the two chambers approved this final version and sent the amendment to the states for ratification.

The Ratification Debates

Ratification of the Twentieth Amendment was swift and uncontroversial. The process was completed less than a year later on January 23, 1933.¹⁶ By April, all forty-eight states had ratified it. Twenty-nine of those ratifications occurred between Election Day 1932 and March 4, 1933. During that period, the Great Depression raged, and the lame-duck government sat paralyzed while the newly elected President Franklin Roosevelt and Congress waited agonizingly for their terms to begin.

The Amendment in Practice

As Section 5 provided, Sections 1 and 2 of the amendment became operative on October 15, 1933. Thus, the second session of the 73rd Congress began on January 3, 1934, instead of on March 4; the 74th Congress began on January 3, 1935; and President Franklin Roosevelt’s second term began on January 20, 1937. All subsequent congressional and presidential terms have followed Section 1.

In 1934, Congress updated the congressional calendar and compressed the Electoral College timeline so that it would be completed before January 20 instead of March 4.¹⁷

In 1947, Congress enacted a new Presidential Succession Act that revised the line of succession, placing the Speaker of the House first in line after the Vice President. Like earlier succession statutes, the 1947 law applied if a double vacancy arose in the middle of the term—that is, if both the President and Vice President died. In an innovation, the 1947 act also applied to a double vacancy that arose on Inauguration Day.¹⁸

Other than these provisions, Sections 3 and 4 have lain mostly dormant. To date, no President-Elect has ever died or failed to qualify, no election has remained unresolved past the start of the term, and Congress has never passed legislation under Section 4 to address the death of a presidential or vice presidential candidate in a contingent election.¹⁹

Judicial Precedent

Because the Twentieth Amendment is straightforward and technical, it has generated virtually no litigation. One case, Lindsay v. Bowen (2014), dealt with an underaged presidential candidate challenging a state’s decision to exclude her from the ballot.²⁰ She argued that under Section 3, Congress had exclusive power to judge presidential candidates’ qualifications; the Ninth Circuit disagreed.²¹

Open Questions

• If neither candidate has an Electoral College majority, the contingent presidential election is conducted “immediately” after the electoral-vote count. Under current law, the votes are counted on January 6, three days after the new congressional term starts on January 3. Could Congress set the counting day before January 3? Nothing in the text of the Twentieth Amendment expressly specifies that the count may not be conducted before the new Congress assembles. However, it is clear that the Framers wanted contingent elections to be conducted by the new Congress instead of the outgoing Congress.²² To what extent should the Framers’ intentions inform a court’s interpretation of the text?
• Under Sections 1 and 2, lame-duck sessions of Congress routinely meet after Election Day. When lame-duck Congresses have taken consequential actions, such as impeachment, some have questioned the validity of those actions, citing the spirit of the Amendment.²³ Should lame-duck sessions after Election Day be eliminated?
• When does someone become the President-Elect for purposes of Section 3? Is it as soon as the Electoral College votes in December? Is it only when the electoral votes are officially counted in January? If a candidate dies after the Electoral College has voted but before Congress can count the votes, do those votes count? How does Section 3 apply?

1. Art. I, § 4, cl. 2. ↩︎
2. 34 J. Cont. Cong. 515 (Sept. 12, 1788). ↩︎
3. Edward J. Larson, The Constitutionality of Lame Duck Lawmaking: The Text, History, Intent, and Original Meaning of the Twentieth Amendment, 2012 Utah L. Rev. 707, 716–17. ↩︎
4. David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 269–70 (1996). ↩︎
5. Larson, supra at 727, 739–44. ↩︎
6. Id. at 718–22. ↩︎
7. Kyvig, supra at 270–71. ↩︎
8. Larson, supra at 744–46. ↩︎
9. S. Rep. No. 72-26, at 4 (1932). ↩︎
10. George W. Norris, Fighting Liberal: The Autobiography of George W. Norris 337–39 (1945). ↩︎
11. Larson, supra at 728–29. ↩︎
12. Amend. XII. ↩︎
13. Brian C. Kalt, A Distinct System for Presidential Succession on Inauguration Day: Getting the Most out of Section 3 of the Twentieth Amendment, 46 Cardozo L. Rev. 307 (2024). ↩︎
14. Brian C. Kalt, Of Death and Deadlocks: Section 4 of the Twentieth Amendment, 54 Harv. J. on Legis. 101, 117, 124 (2017). ↩︎
15. Id. ↩︎
16. Larson, supra at 734. ↩︎
17. Twentieth Amendment Adjustment Act, Pub. L. No. 73-286, 48 Stat. 879 (1934). ↩︎
18. Act of July 18, 1947, 61 Stat. 380, 380–81. ↩︎
19. Kalt, Of Death and Deadlocks, supra at 145–47. ↩︎
20. 750 F.3d 1061 (9th Cir. 2014). ↩︎
21. Id. at 1065. ↩︎
22. Larson, supra at 744–46. ↩︎
23. Bruce Ackerman, The Case Against Lameduck Impeachment (1999); John Copeland Nagle, A Twentieth Amendment Parable, 72 N.Y.U. L. Rev. 470 (1997); Larson, supra at 709 et seq. ↩︎