The lame ducks of Marbury.

• Author: Nagle, John Copeland
• Position: Presidential transition from John Adams to Thomas Jefferson, persistant problem of lame duck appointments

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. Echoes of those concerns sounded during the push to approve the twentieth amendment during the 1920's and early 1930's. Most recently, academics have responded to perceived abuses by lame duck Presidents by proposing restrictions on the President's powers during the lame duck period. I will join those calls in this essay, hoping that we can learn the lesson of Marbury's appointment just as we have accepted Marbury. It is time to heed Jefferson's plea for "common justice to leave a successor free to act by instruments of his own choice." (6)

1. THE EVENTS OF THE LAME DUCK PERIOD OF 1800 TO 1801

   1. THE CHRONOLOGY OF EVENTS

      The timing of the actions of the lame duck President Adams and the Federalist-controlled Congress in 1800 and 1801 speaks for itself:

      November 17 The second session of the Sixth Congress began December 15 Adams learned of the resignation of Chief Justice Oliver Ellsworth December 18 Adams nominated John Jay to serve as Chief Justice December 19 The Senate confirmed John Jay to serve as Chief Justice January 2 Jay wrote to Adams declining to serve as Chief Justice January 20 Adams nominated John Marshall to serve as Chief Justice House passed the Judiciary Act January 23 Senate rejected the Treat with France January 27 Senate confirmed Marshall as Chief Justice February 3 Senate ratified the Treat with France February 4 Marshall took the oath of office as Chief Justice February 5 Senate passed the District of Columbia courts act February 11 Senate passed the Judiciary Act February 13 Adams signed the Judiciary Act February 17 House elected Thomas Jefferson as President February 18 Adams submitted nominations for most of the circuit judges to fill the positions created by the Judiciary Act February 20 Senate confirmed the judges nominated two days before February 23 Adams submitted nominations for five additional circuit judges and other offices created by the Judiciary Act February 24 Senate confirmed the judges nominated the day before House passed the District of Columbia courts act February 25 Adams submitted nominations for two additional circuit judges created by the Judiciary Act February 26 Senate confirmed the judges nominated the day before February 27 Adams signed the District of Columbia courts act February 28 Adams submitted nominations for three judges, the district attorney, and the federal marshal established by the District of Columbia courts act March 2 Adams nominated William Marbury and 41 others to serve as justices of the peace pursuant to the District of Columbia courts act Senate confirmed the last of the judges nominated on February 26 March 3 Senate confirmed the appointment of Marbury and the others nominated the day before March 4 Thomas Jefferson inaugurated as President The Federalist Party controlled the presidency and the Congress for the first twelve years of government under the new Constitution of the United States. George Washington served two terms as President, then John Adams took office in 1796. The Federalists also controlled the Congress. During that time, though, President Washington's leadership covered an increasingly divisive disagreement between Alexander Hamilton and Thomas Jefferson concerning the direction of the federal government. Hamilton and his allies came to be known as the Federalist Party, while Jefferson was the acknowledged leader of the Republican Party. The election of 1800 thus presented a stark choice regarding the future direction of the young United States. But the choice was not simply between the Federalists and Jefferson. John Adams had steered a middle course during his term as President, frustrating ardent Federalists and Jeffersonian Republicans alike. Adams remained a Federalist, though, so he and Jefferson competed for the presidency in 1800. (7)

      Jefferson defeated Adams by eight electoral votes--73-65--making it one of the closest presidential races in American history. Adams would have prevailed if he had won New York, which went for Jefferson by a mere 250 votes. (8) Meanwhile, the Federalists lost control of Congress as well. By December 12, then, it was clear that twelve years of Federalist rule had ended. What was not known, of course, is that "[t]he Federalists were never to regain power in the executive and legislative branches after the loss of the election of 1800." (9)

      Nearly three months remained after Adams learned that he would not serve another term until Jefferson would actually succeed him. Three important events occurred during that lame-duck period: the Treaty with France was approved, the House of Representatives selected Jefferson as President, and the federal judiciary was expanded and populated. The latter event receives most of the attention when the actions of lame-ducks are critiqued, but the importance of the first two events should not be underestimated.

      1. The Treaty with France

         The Sixth Congress began its lame duck session in December 1800. It did little until January 1801, when the Senate began a month of debate concerning the treaty that the Adams administration had negotiated with France. President Adams had named Chief Justice Oliver Ellsworth, Patrick Henry, and William Vans Murray to negotiate an end to ongoing disputes with France, a move that the Senate confirmed in February 1799 "over High Federalist objections." (10) Those negotiations yielded an agreement signed at Mortefontaine in early October 1800. The Senate considered the treaty as the first measure of serious business during its lame-duck session following the election of 1800. But "[h]aving lost his bid for reelection, Adams had even less influence than usual with the High Federalists," and the Senate defeated the treaty 16-14 on January 23, with all of the negative votes cast by Federalists. (11) As Jean Edward Smith explains:

         The fact is, the party had thrown a temper tantrum--a splenetic outburst of resentment against Adams, against France, against the impending loss of power that the election had made inevitable. Reality dawned quickly. To the discomfiture...