Republican members of the House of Representatives are mulling over the idea of denying the President the chance to deliver his 2015 State of the Union Message to a joint session of Congress this coming January 27. This would be one of an array of punitive measures that they are seeking to deploy against him because of what they regard as his tyrannical actions reviving the “imperial Presidency.” How and why would this step – which is unprecedented – be constitutional, feasible, or even a good idea?
The State of the Union Message is a custom with roots in a constitutional command – Article II, section 3, of the U.S. Constitution:
The first thing that this section of the Constitution makes clear is that delivering the State of the Union Message is a custom that has evolved to meet a constitutional responsibility of the President – that of “from time to time giv[ing] the Congress Information of the State of the Union, and recommend[ing] to their Consideration such Measures as he shall judge necessary and expedient….” In other words, he has to communicate regularly with Congress about the State of the Union, and he may also make statutory recommendations, with full discretion. That presidential responsibility to communicate also implies a congressional responsibility to receive the president’s communication, in whatever form he chooses to deliver it. So, there is an explicit presidential responsibility under Article II, section 3, and an implied congressional responsibility under the same section.
How have presidents met this responsibility? George Washington and John Adams showed up in person each year to give a speech. Beginning in 1801, however, Thomas Jefferson rejected showing up before a joint session of Congress and giving a speech. Rather, he delivered a written message each year that he was president, and thus reset the custom for over a century. Two reasons undergirded Jefferson’s decision, one principled and one personal. The principled reason was Jefferson’s resistance to any feature of the presidency that seemed to echo a trapping of monarchy; in this case, Jefferson concluded that delivering the State of the Union message as a speech was too close to the “speech from the throne” with which English monarchs began sessions of Parliament. Jefferson deemed a written message more republican in spirit and avoiding the echoes of monarchy. The personal reason was that Jefferson had a horror of public speaking, and hated to give speeches – witnesses said that his greatest speech, his First Inaugural Address of 1801, was inaudible beyond the first two or three rows of the congressional chamber where he gave it.
Presidents from Madison through William Howard Taft in 1912 followed Jefferson’s practice and delivered written messages to be read to each house of Congress by its clerks. This precedent lasted from 1801 through 1912. In 1913, the new president, Woodrow Wilson, argued that the presidency was an institution requiring direct personal leadership for effective governance; one way to achieve that goal was to deliver the State of the Union message in person to a joint session of Congress, which he did for most of his presidency. Only health problems forced him to return to written messages in 1919 and 1920. Warren G. Harding delivered his State of the Union messages in person in 1921 and 1922; his successor, Calvin Coolidge, did so in 1923 but resumed the practice of written messages from 1924 through 1928, a practice followed from 1929 through 1932 by Herbert Hoover.
Franklin D. Roosevelt resumed giving speeches instead of written messages in 1934 and continued to speak to Congress in person through his presidency. Since then, some presidents resumed giving written messages – Truman (1946 and 1953), Eisenhower (1961), Carter (1981), and Nixon (1973). Others have given both speeches and written messages (Roosevelt 1945, Eisenhower 1956, Nixon 1972 and 1974, Carter, 1978, 1979, and 1980). Reagan, Bush I, Clinton, and Bush II chose not to give speeches in their last year in office.
If the new Congress chooses not to make a joint session available for President Obama to give his 2015 message as a speech, he can send a written text to both houses, while giving a speech from the White House or any other suitable venue chosen to make a political point. But there is another possibility, rooted in the same provision of the Constitution that governs the State of the Union requirement. Section 3 also empowers the President to “convene both Houses” “on extraordinary occasions” – just as Abraham Lincoln did in 1861 to respond to the secession crisis and the beginning of the Civil War.
Like it or not, President Obama has full power and responsibility to deliver the State of the Union message; Congress has at least an implied obligation to listen to it or to read it; and Obama may have the power to bring them into session to make Congress listen to his speech. In this case, history is clearly on the President’s side, both as to the nature of the State of the Union Message and the remedies at his disposal if the congressional Republican leadership pursues this idea.
Aren’t there better fights to pick than this one?