The Legislator-in-Chief.

• Author: Kesavan, Vasan
• Position: Role of U.S. President in legislative process

ABSTRACT

The State of the Union and Recommendation Clauses of Article II, Section 3 provide that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such Measures as he shall judge necessary and expedient." Those thirty-one words envision the President as the lead active participant in the embryonic stages of the making of laws. Eight separate principles animate the President's legislative duties and powers before the presentment process. When the State of the Union and Recommendation Clauses are seen to have this textual and analytical subtlety, they reveal the sophistication of the Framers' design that the President, through her institutionally unique ability to acquire and analyze information valuable to the leadership of the Republic, would have significantly more to contribute to the legislative process than merely to sign off on their creation by Congress. Far from making the President a cipher in the legislative process, the Constitution created the Legislator-in-Chief.

INTRODUCTION

Americans today identify the President as the Legislator-in-Chief. When presidential candidates promise, We the People listen--carefully. There is much truth to the popular recognition of the President as the Legislator-in-Chief: Ever since the New Deal, we truly have had a populist, plebiscitarian presidency. (1)

This vision of the President may seem modern, but the Constitution itself has always recognized the President as a superlegislator. The Veto Clauses of Article I, Section 7 give the President the "last word" on all legislation, absent an override by a two-thirds supermajority of both Houses of Congress. (2) The President, however, sometimes has the important "first word" on legislation, too. The State of the Union and Recommendation Clauses of Article II, Section 3 provide that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient...." (3) Justice Hugo Black in Youngstown Sheet & Tube Co. v. Sawyer (4) summarized the obvious one-two punch this way: The President's "functions in the lawmaking process" are simply "the recommending of laws he thinks wise and the vetoing of laws he thinks bad." (5)

Although much has been written about the Veto Clauses, (6) the State of the Union and Recommendation Clauses remain embarrassingly underexamined in legal scholarship. (7) The problem is not merely one within the legal academy. Contemporary accounts suggest that these clauses were underexamined at the Founding because they were uncontroversial. There is no recorded debate on these clauses at the Philadelphia Convention of 1787. In The Federalist No. 77, Alexander Hamilton simply observed that "no objections ha[ve] been made to this class of authorities; nor could they possibly admit of any." (8) Notable early commentators on the Constitution echoed this sentiment. (9)

Notwithstanding such neglect, benign or otherwise, the State of the Union and Recommendation Clauses stand atop Article II, Section 3 as grand contours of the "executive Power" vested in the President by means of the Vesting Clause of Article II. (10) As such, they are no less important than the other clauses of Article II. The Supreme Court has listed the State of the Union and Recommendation Clauses as some of the "awesome" powers entrusted to, and duties imposed on, the President. (11) Alexander Hamilton thought these clauses important enough to place them first among all clauses specifying the contours of executive power in his private, unadopted draft of the Constitution. (12)

This Article explores these two least discussed clauses of Article II. A careful parsing of the thirty-one words of these clauses yields insights into the presidency that are both timely and timeless. Through these clauses we analyze the President's constitutional role in the origination of legislation. We use, in addition to familiar methods of constitutional analysis, tools from economic theory concerning asymmetric information and organizational design. Our analysis reveals the State of the Union and Recommendation Clauses as surprisingly rich and relevant to the modern conception of the Presidency.

1. THE STATE OF THE UNION CLAUSE

   The State of the Union Clause can be dissected into four core principles. (13) We call these (i) the executive duty principle, (14) (ii) the periodicity principle, (15) (iii) the publicity principle, (16) and (iv) the public deliberation principle, (17) We consider each in turn and show how these principles and the principles of the Recommendation Clause (18) cohere to give substance to these two clauses and to illuminate the President's constitutional role as the Legislator-in-Chief.

   A. "He Shall": The Executive Duty Principle

   The phrase "[h]e shall" is the font of the executive duty principle. The State of the Union and Recommendation Clauses are obviously about the President. A quick glance at the rest of the Constitution confirms that no analogous clauses appear in Articles I or III. This fact is a textual hint that there is something special about these clauses relating to the features and functions of the presidency.

   The clauses do not signify any kind of congressional prerogative. They do not provide that "Congress may from time to time require the President to give to the Congress Information of the State of the Union." Some, however, have called for just such a reading of the State of the Union Clause. For example, Raoul Berger, in his work on executive privilege, has written that Congress may request performance of the President's duty under the State of the Union Clause at its convenience. (19) This reading is textually awkward and wrong: The President is not, constitutionally speaking, the inferior of Congress, but is the head of an independent and coequal branch of government. (20)

   Another clause of Article II governs a different information exchange and provides an important textual clue that underscores the idea of an executive duty. The Opinion Clause provides that the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices...." (21) There is a vast difference between the phrase "may require" in the Opinion Clause and the phrase "shall give" in the State of the Union Clause. The Opinion Clause governs an information exchange between a superior and his inferiors, whereas the State of the Union Clause governs an information exchange between two equals. (22) The former clause implies the specification of orders to, and the evaluation of the performance by, someone to whom the President has delegated executive power. The analogy is to a principal and agent relationship. (23) The latter clause, in contrast, implies joint production resulting from two separate, but mutually dependent actors. (24)

   The State of the Union and Recommendation Clauses do not signify executive prerogative, but rather executive duty. The Framers used "shall" as a word of obligation, (25) and the use of the word "shall" in the State of the Union Clause strongly suggests that the President is constitutionally obligated to "give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient...." (26)

   The precursors to the State of the Union and Recommendation Clauses are illuminating. An early draft of the clauses by the Committee of Detail (27) made explicit that the clauses are an executive duty: "It shall be his Duty to inform the Legislature of the Condition of U.S. so far as may respect his Department--to recommend Matters to their. Consideration...." (28) This draft clause mirrored the language in Article XIX of the New York Constitution of 1777, which provided that "it shall be the duty of the governor to inform the legislature, at every session, of the condition of the State, so far as may respect his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity." (29)

   Early commentators on the Constitution agreed that the State of the Union and Recommendation Clauses are mandatory. Justice Story wrote in his famous Commentaries on the Constitution:

   There is great wisdom, therefore, in not merely allowing, but in requiring, the president to lay before congress all facts and information, which may assist their deliberations; and in enabling him at once to point out the evil, and to suggest the remedy. He is thus justly made responsible, not merely for a due administration of the existing systems, but for due diligence and examination into the means of improving them. (30) Similarly, William Rawle, in his treatise on the Constitution, wrote that "[t]he president is also required to recommend to their consideration such measures as he may deem expedient." (31)

   What about the Recommendation Clause? In 1993, the United States Court of Appeals for the D.C. Circuit stated that, while "[t]he Framers intended the Take Care Clause to be an affirmative duty on the President and the President alone," the Recommendation Clause "is less an obligation than a right." (32) This reading of the Recommendation Clause is wrong. The President is obligated to make recommendations to Congress--more precisely, those recommendations that she deems to be "necessary and expedient." (33) The secret drafting history of the Recommendation Clause confirms that the Framers made the Recommendation Clause an executive duty as well. The report of the Committee of Detail provided that "he may recommend to their consideration such measures as he shall judge necessary, and expedient." (34) On the motion of Gouverneur Morris, however, the phrase "he may" was struck and the word "and" was...