THE RECOMMENDATIONS CLAUSE AND THE PRESIDENT'S ROLE IN LEGISLATION.

• Author: Schwartz, Benjamin J.

INTRODUCTION

In Youngstown Sheet & Tube Co. v. Sawyer, Justice Black wrote that the Constitution limits the President's "functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." (1) Article II, Section 3 of the Constitution is the source of the President's recommending function, stating 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...." (2) Presidents dating back to George Washington have relied on the Recommendations Clause (3) as a positive source of authority to make legislative recommendations to Congress. In an interesting twist, however, recent administrations have also frequently wielded it as a source of negative power to escape statutory requirements to provide information to Congress. Despite a great deal of scholarship and media commentary on executive power and the presidency, the active role of the Recommendations Clause in legislative politics as a source of negative presidential power has gone largely unexplored. This Comment sheds light on this important intersection of constitutional law and interbranch politics.

A recent example illustrates the significance of the Recommendations Clause as a tool of negative executive power. In 2003, Congress passed the Medicare Prescription Drug, Improvement, and Modernization Act (Medicare Modernization Act), (4) which codified a provision requiring that the President recommend responsive legislation to Congress in the event of a "medicare funding warning." (5) A Medicare funding warning occurs when the portion of Medicare expenditures paid for with general revenues, as opposed to dedicated Medicare funding, surpasses forty-five percent two years in a row. (6) Despite the law's clear language that "the President shall submit to Congress, within the 15-day period beginning on the date of the budget submission to Congress... proposed legislation to respond to such warning," (7) every President since has indicated that they view this requirement as optional. (8) While President George W. Bush ultimately did submit the required proposed legislation to Congress after a Medicare funding warning during his tenure, Presidents Obama and Trump did not comply with the requirement. (9) They both declared in their budgets that they viewed the law as merely "advisory" and did not submit responsive legislation within the prescribed fifteen-day period. (10) The upshot is that Congress passed a law, but multiple Presidents unilaterally decided not to comply with the obligation it placed on them. Members of Congress and their constituents might understandably demand to know: on what authority?

The answer offered by these presidents is explored in depth in Section III.A, but the short version is: the Recommendations Clause. This Comment explores the exercise of this type of negative power under the Recommendations Clause by recent administrations. It is the first to comprehensively address this issue. Just two scholarly articles squarely address the Recommendations Clause, but they explore the interaction of the positive duty to recommend with laws that frustrate performance of that duty--most commonly "muzzling laws" that prohibit the use of funds to study a policy area and thereby impede the President from crafting a recommendation in that area. (11) By contrast, I focus on laws that require the President to make a recommendation on a given policy topic and explore whether they infringe on presidential discretion under the Recommendations Clause, as recent presidential administrations claim.

Accordingly, I have three goals in this Comment. In Part I, I seek to build on the limited scholarship about the history and purpose of the Recommendations Clause and the different ways Presidents and Congress have interpreted and applied it. I show that the Framers made it the President's constitutional duty to make legislative recommendations to Congress in order to increase information flow from an executive branch, with unique access to policy information, to a legislative branch in need of that information to effectively discharge its lawmaking function.

In Part II, I describe the types of arguments administrations make about the scope of negative presidential power, incident to the positive duty to recommend under the Recommendations Clause, and how those arguments are developed in and expressed by the executive branch. Specifically, I identify a common presidential practice that has not previously been the subject of thorough academic attention: asserting negative power under the Recommendations Clause to escape statutory requirements to provide legislative recommendations to Congress, like the one in the Medicare Modernization Act. I call these statutory requirements "triggering laws." A triggering law is any bill or statute that requires the executive branch to make a legislative recommendation to Congress on a particular topic but does not dictate the content of that recommendation. (12)

My research reveals that, despite the lack of scholarly attention to the issue, it has become common practice for presidents to assert negative power under the Recommendations Clause to escape triggering laws, both by seeking to influence the content of pending legislation containing triggering provisions and through signing statements and legal memoranda stating how the administration will interpret triggering laws after they are passed. For example, going back to Ronald Reagan, presidents have issued ninety-nine signing statements expressing objections to triggering laws on Recommendations Clause grounds--often expressing multiple objections in the same statement. (13) President George W. Bush was the most prolific, issuing sixty such signing statements. President Trump is on pace to rival that number, having already issued sixteen such statements. (14) Add to that figure other executive communications about legislation still pending in Congress, like Department of Justice (DOJ) views letters (15) and informal exchanges, and the Recommendations Clause comes into focus as an actively used tool of negative executive power.

In Parts III and IV, I argue against using the Recommendations Clause in this way. I contend that the scope of presidential discretion under the Recommendations Clause is more limited than recent administrations claim and that triggering laws like the Medicare Modernization Act generally do not infringe on that discretion. I contend that, while administrations have rightly objected to muzzling laws as impediments to the President fulfilling his or her duty to make recommendations to Congress, triggering laws do not frustrate the President's performance of any constitutionally assigned function. I conclude that reading the Recommendations Clause to confer exclusive discretion on the President--broad enough to preclude enforcement of triggering laws subverts its purpose--offends separation of powers principles and risks permitting an administration to bottleneck executive branch information important to congressional lawmaking and oversight in the office of the President.

1. THE POSITIVE DUTY TO RECOMMEND

   1. The Recommendations Clause at the Framing

      The Framers considered, and rejected, making it optional for the President to recommend legislation to Congress. An early draft of the Constitution from the Philadelphia Constitutional Convention of 1787 included a Recommendations Clause reading, "He shall, from time to time, give information to the Legislature, of the State of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient...." (16) According to James Madison's notes from the convention, on August 24, 1787, a motion passed amending the clause to its current construction, replacing "may" with "shall," "in order to make it the duty of the President to recommend, & thence prevent umbrage or cavil at his doing it." (17) The Framers were apparently concerned that the President would refrain from engaging with Congress on important issues out of fear that Congress would resent the intrusion on its legislative power and exact political revenge. (18) They changed the language of the clause in order to guarantee presidential input on legislation. (19)

      Another change to the language of the clause lends additional support to this reading. A preliminary draft of the Constitution, produced by the Convention's Committee of Detail and found among the papers of one of its members, James Wilson, shows that the Recommendations Clause originally stated that the President "may recommend Matters" to Congress. (20) The chairman of the Committee, Edward Rutledge, crossed out "matters" and replaced it with "such measures as he shall judge nesy. & expedt." (21) The change suggests a preference for more in-depth presidential involvement in lawmaking, inasmuch as "measures" implies that recommendations should be formed means to identified ends, in contrast to the spare referrals or general observations that might qualify as recommended "matters." (22)

      Taken together, the changes to the draft text demonstrate the Framers' intent to guarantee that the President would play a substantive role in congressional lawmaking. (23) Early scholars agreed that this desire for collaboration was based on the unique institutional competency of the executive. In his appendix to Blackstone's Commentaries, St. George Tucker noted that "[a]s from the nature of the executive officer it possesses more immediately the sources, and means of information than the other departments of government," and therefore "the constitution has made it the duty of the supreme executive functionary, to lay before the federal legislature, a state of such facts as may be necessary to assist their deliberations on the several subjects confided to them by the...