The Legislator-in-Chief

64 Pages Posted: 3 Dec 2002

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 an active participant in the embryonic stages of the making of laws. Eight separate principles animate the President's legislative responsibilities before the presentment process. The State of the Union Clause imposes an executive duty on the President. That duty must be discharged periodically. The President's assessment of the State of the Union must be publicized to Congress, and thus to the nation. The publication of the President's assessment conveys information to Congress - information uniquely gleaned from the President's perspective in his various roles as Commander-in-Chief, chief law enforcer, negotiator with foreign powers, and the like - that shall aid the legislature in public deliberation on matters that may justify the enactment of legislation because of their national importance. The Recommendation Clause also imposes an executive duty on the President. His recommendations respect the equal dignity of Congress and thus embody the anti-royalty sentiment that ignited the American Revolution and subsequently stripped the trappings of monarchy away from the new chief executive. Through his recommendations to Congress, the President speaks collectively for the People as they petition Government for a redress of grievances, and thus his recommendations embody popular sovereignty. The President tailors his recommendations so that their natural implication is the enactment of new legislation, rather then some other action that Congress might undertake. Finally, the President shall have executive discretion to recommend measures of his choosing. When the State of the Union and Recommendation Clauses are seen to have this textual and analytical subtlety, they reveal the sophistication of the Framer's design that the President, through his institutionally unique ability to acquire and analyze information valuable to the leadership of the Republic, would have more to contribute to the making of laws than merely to sign off on their creation by another branch. Far from making the President a cipher in the legislative process, the Constitution created a Legislator-in-Chief.

JEL Classification: K00, K10, K19, K30, K39, H11

Suggested Citation

Kesavan, Vasan and Sidak, J. Gregory, The Legislator-in-Chief. William & Mary Law Review, Vol. 44, No. 1, pp. 1-64, 2002. Available at SSRN: https://ssrn.com/abstract=310163 or http://dx.doi.org/10.2139/ssrn.310163

Vasan Kesavan

Independent ( email )

No Address Available

J. Gregory Sidak (Contact Author)

Criterion Economics, L.L.C. ( email )

1717 K Street, N.W.
Washington, DC 20006
United States
(202) 518-5121 (Phone)

HOME PAGE: http://www.criterioneconomics.com

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