The Lame Duck Session of Congress Begins

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Jockeying for leadership roles is already underway. Congress will likely act only to prevent a government shutdown, while the Senate will confirm more judges

WASHINGTON—After a long recess that began in September, both houses of the 118th Congress will return on Nov. 12 for its final session. It’s the first time the legislature will convene after general elections on Nov. 5, in which Republicans gained control of the Senate in the 119th Congress that takes office on Jan. 3, 2025. Below, we list what to expect.

New Senators and Leaders

The balance of power in either house will not change until January, with Democrats retaining their working majority in the Senate through the end of 2024. However, during such a session, Congress is often termed a “lame duck,” since a new electoral mandate is evident. Moreover, the composition of the Senate will change almost immediately, with several new electees joining the body.

These include Sen.-elect and current Rep. Adam Schiff (D-Calif.), who won a general and special election to the Senate seat held by the late Sen. Dianne Feinstein (D-Calif.). The special election, as required by state law, is to serve the remaining months of Feinstein’s term in the 118th Congress, with the temporary appointee to that seat, Sen. Laphonza Butler (D-Calif.), leaving the body accordingly.

Joining the Senate early will give Schiff seniority over all new senators being sworn into office on Jan. 3.

Additionally, Schiff’s other House Democratic colleague elected to the Senate—Sen.-elect and Rep. Andy Kim (D-N.J.)—will also join the body early. Unlike in California, no special election was held for the seat vacated by former Sen. Robert Menendez (D-N.J.) upon his felony conviction. The current temporary appointee, Sen. George Helmy (D-N.J.), plans to resign so Gov. Phil Murphy (D-N.J.) can appoint Kim before his regular term begins.

The resignations of Schiff and Kim from the House to join the Senate will increase Republicans’ slim majority in the lower body, where internal party division led to a historically unproductive legislative session. As of this writing, several incumbent members have launched bids for leadership positions in the new Congress, for which elections will likely take place during the lame-duck session.

Another major development will be the election of a new leader of the Senate Republican Conference, who will immediately become the Senate majority leader upon the 119th Congress taking office. The incumbent, Mitch McConnell (R-Ky.), is retiring after 14 years in the role. Three senators—John Cornyn (R-Texas), Republican Whip John Thune (R-S.D.), and Rick Scott (R-Fla.)—are running for the role.

McConnell announced his decision earlier this year, which means that jockeying for the leadership has gone on for a while. However, the party’s impending control of the Senate had altered the landscape of the race, most notably with Scott’s entry and endorsement from several prominent populist figures.

President-elect Donald Trump has set out his demands—chiefly, that the new leader acquiesces to his issuance of recess appointments to executive positions requiring the Senate’s advice and consent.

Beyond composition changes, Congress will have several major residual policy items to address before it dissolves.

Another Continuing Resolution

As usual, Congress was unable to pass full-year spending or “appropriations” bills for fiscal year 2025 by the deadline of Sept. 30. As a result, keeping with regular practice, it passed a “continuing resolution” (CR) that extended funding at the previous year’s levels for a prorated period, ending on Dec. 20. To keep the government funded, Congress will have to act by that date.

It is highly unlikely that full-year appropriations bills will be passed before the 118th Congress dissolves. Instead, it is likely to pass another CR that pushes the question of 2025 appropriations to the next Congress, where Republicans are likely to control both houses. Doing so will enable a newer body, freshly elected, to begin the whole appropriations process again.

“Congress will … pass a CR in September to delay the deadline until December, where they will either negotiate a full-year omnibus or another continuing resolution. This has become the normal mode of business these days,” Joshua Huder, a senior fellow at The Government Affairs Institute at Georgetown University, told The Epoch Times.

Pushing the process into 2025 had long been the intention of Republicans, who had expected to win the presidential election that would give them greater leverage to enact more conservative spending legislation.

“I’d rather [the CR] go clear into March in hopes that former President Trump wins the election and then has a chance to put his fingerprints on legislation,” Sen. Cynthia Lummis (R-Wy.) told The Epoch Times in September.

“We’ll fund the government into March,” read a statement from Rep. Chip Roy (R-Texas) that month. “We’re going to give [government spending] to President Trump’s administration to fix.”

‘Midnight Judges’

Given Trump’s victory in the presidential election and Republicans’ impending control of the Senate, the entire judicial appointment process is set to be controlled by conservatives in the 119th Congress. During the last period of such dual control, from 2017 t0 2021 during Trump’s first presidential term, the Republican-led Senate granted “advice and consent” (i.e., confirmation) to 251 federal judges nominated and appointed by him.

Then-Majority Leader Mitch McConnell called judicial confirmations of conservative nominees his “highest priority.”

During their terms, President Joe Biden and Senate Majority Leader Chuck Schumer (D-N.Y.) have followed suit. The Senate has, so far, confirmed 213 federal judges that Biden nominated.

The composition of the federal judiciary has become tremendously important to politics in recent years, given frequent litigation. Many of the Biden administration’s regulatory actions—from student debt relief to border policies—have been blocked by conservative federal judges pending review by the Supreme Court, which has a conservative majority.

Biden and Schumer are likely to continue the frequency of judicial confirmations in the final weeks of his presidency, so that nominees may be appointed to terms with life tenure before Trump takes office on Jan. 20, 2025.

Days after the election, Biden issued fresh nominations to judicial vacancies — including Tali Farhadian Weinstein, to the influential U.S. District Court for the Southern District of New York.

So long as Democrats retain their working majority in the Senate, it’s unlikely that Republicans can do anything to stop the appointments. There are currently 47 active vacancies in Article III federal courts across the United States.

The practice of appointing judges and justices in a lame-duck session is long established in American history, dating back to 1801, when President John Adams appointed many Federalist-affiliated “midnight judges“ after losing the election of 1800 to Vice President Thomas Jefferson.

A dispute over one such appointment became the basis for the Supreme Court’s landmark holding in Marbury v. Madison, establishing the principle of judicial review.

Kicking the Can Down the Road

Beyond averting a government shutdown and the Senate’s confirming Biden-nominated judges, it’s highly unlikely that Congress will address any major legislative item in the final weeks before Jan. 3, 2025.

Often, the end of Congress prompts votes on major legislative items, taking advantage of retiring members who can vote without consequence on bills that may be unpopular in their constituencies.

However, House Republicans—who will likely increase their majority in the 119th Congress—have no incentive to work with the Democratic-led Senate on non-immediate issues and will delay any major legislation so that the next Republican-led Congress can address it.

When a new Congress convenes, it will have to address several major legislative matters immediately. Chief among them is the federal debt ceiling, which was suspended for two years by the Fiscal Responsibility Act (FRA) of 2023.

The suspension will expire on Jan. 2, 2025, and the limit will reapply, at which point it will immediately be exceeded, creating the risk of sovereign default by the United States.

However, a default won’t occur immediately. The Department of the Treasury will deploy extraordinary measures as it did in 2023 to stave off a default for several months. The exact date at which a default will occur following these measures is uncertain, given that spending priorities vary.

Many Republicans, especially in the House, have strongly criticized raising or suspending the debt ceiling, which they believe enables unsustainable government spending. In 2023, they insisted upon significant spending limits for 2024 and 2025 in the FRA, in exchange for the debt-limit suspension. However, remaining Republicans and the totality of Democrats have cautioned against such conditions, arguing that a default will be catastrophic for the U.S. economy as well as the whole world, given that the U.S. dollar is the world’s reserve currency.

Beyond debt, Congress also will be prompted to address taxation. Key provisions of the Tax Cuts and Jobs Act (TCJA) of 2017, which was championed by Trump and the then-Republican-led Congress, will expire in early 2025.

Republicans are interested in reauthorizing the TCJA’s popular provisions, such as the reduction of income tax rates and the creation of ‘opportunity zones’ for low business taxation.

“The Tax Cuts and Jobs Act provided over 16,000 new jobs for the state of Tennessee,” wrote House Homeland Security Committee Chairman Mark Green (R-Tenn.) about his own state, on X. “If Congress allows it to expire at the end of 2025—those jobs will be lost.”

“We’re going to extend these tax cuts for our families, farmers, and businesses to grow our economy, promote financial security, and fight inflation,” wrote Rep. Randy Feenstra (R-Iowa), a member of the House Ways & Means Committee, which will write the new legislation.