The Lame Ducks of Marbury

Article excerpt

Thomas Jefferson and John Adams had not been the best of friends before the election of 1800, and their competition for the presidency gave them ample occasion to ponder each other's faults. Yet it was easy for Jefferson to identify the single incident that troubled him most. As he wrote to Abigail Adams in 1804:

   I can say with truth that one act of Mr. Adams' life, and one
   only, ever gave me a moment's personal displeasure. I did
   consider his last appointments to office as personally unkind.
   They were from among my most ardent political enemies,
   from whom no faithful cooperation could ever be expected,
   and laid me under the embarrassment of acting thro' men
   whose views were to defeat mine; or to encounter the odium
   of putting others in their places. It seemed but common justice
   to leave a successor free to act by instruments of his own
   choice. (1)

Jefferson, alas, was denied such kindness and common justice, and it was his attempt to achieve it that produced Marbury v. Madison. (2)

The constitutional flaw that gave rise to Marbury persists even as we celebrate the decision's two hundredth birthday. Marbury established a principle of judicial review which courts have applied without hesitation ever since then. (3) Marbury--that is, William Marbury, the erstwhile justice of the peace and unsuccessful plaintiff--suffered a different fate. On his next to last day in office, President Adams selected Marbury to serve in an office that Congress had created only three days before. The Senate quickly gave its consent and Secretary of State John Marshall sealed the commission, but Marshall neglected to deliver the commission before the clock tolled midnight on March 3, thus ending the Adams Administration. Marbury was legally entitled to his office, said Chief Justice John Marshall in Marbury, but the statute by which Marbury asked the Court to act was unconstitutional. Marbury lost, but Marbury lived on.

None of this would have happened, of course, if President Adams and his Federalist Party allies in Congress had not been in such a hurry to create and populate an expanded federal judiciary. And Adams and the Federalists would not have been in such a hurry if Adams had been reelected in 1800. But Jefferson and the dreaded Republicans were the victors, and they were poised to take office on March 4, 1801. The months between the election and the inauguration--the so-called "lame duck" period-thus provided the last opportunity for the Federalists to exercise the authority of the government of the United States. They made the most of the opportunity. In the understated words of Chief Justice Rehnquist, "The lame-duck Congress ... proceeded to use its political power with considerable abandon." (4) Between December 1800 and March 3, 1801, President Adams and the Federalist majority in Congress enacted sweeping legislation, approved treaties, appointed a new Chief Justice and dozens of other judges to the federal judiciary, and nearly succeeded in anointing Aaron Burr as President instead of Thomas Jefferson. The incoming Republicans were not amused, but the Constitution left them helpless. (5)

Nearly 150 years passed before the Constitution was amended in an effort to solve the lame duck problem. Pursuant to the twentieth amendment, the newly-elected President now takes office on January 20 instead of March 4, and the new Congress begins on January 3 instead of when. The proponents of the twentieth amendment believed that they had solved the lame duck problem once and for all. But they were wrong. Lame duck Presidents and Congresses have been busy enacting legislation, promulgating regulations, approving treaties, pardoning criminals, and appointing judges and other officials. Their state executive and legislative counterparts do much the same thing.

This persists despite the early recognition that actions by lame ducks present serious questions of democratic theory. …