The Recommendations Clause and the President's Role in Legislation

59 Pages Posted: 8 Oct 2019

See all articles by Benjamin Schwartz

Benjamin Schwartz

University of Pennsylvania Law School, Students

Date Written: 2019

Abstract

Article II Section 3 of the Constitution provides that the president "shall...recommend to [Congress's] consideration such measures as he shall judge necessary and expedient." In an interesting twist, modern presidential administrations have interpreted this affirmative duty to recommend policies to Congress to imply exclusive discretion over the timing and topic of recommendations. Accordingly, every president back to Ronald Regan has relied on the Recommendations Clause to escape statutory requirements to provide policy recommendations to Congress – requirements that I call "triggering laws." This Comment adds to the limited scholarship on the framing of the Recommendations Clause and offers new research on the ways and the frequency with which presidential administrations have wielded the Recommendations Clause as a source of negative executive power to reinterpret triggering laws - that is, to withhold executive branch information from Congress. It argues that the prevailing executive branch reading of the Recommendations Clause is contrary to the Framers' intent and longstanding historical practice, and inconsistent with separation of powers principles.

Keywords: Constitution, Legislation, Executive Power, Separation of Power, Recommendations Clause, Article II Section 3

Suggested Citation

Schwartz, Benjamin, The Recommendations Clause and the President's Role in Legislation (2019). 168 U. Pa. L. Rev. (Feb. 2020 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3450839

Benjamin Schwartz (Contact Author)

University of Pennsylvania Law School, Students ( email )

Philadelphia, PA
United States

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