State of the Union and Take Care Clause – Constitution Article 2 §3

On Wednesdays we study the Constitution. Most recently, I looked at Article 2 §2.3 granting the president power to fill vacancies during recesses of Congress. That completed Section 2 of Article 2 of the Constitution.Today I’m moving on to Section 3, which has only one clause, but it’s long and sort of a grab bag of executive powers.

Article 2 §3

He 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; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them,with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Information of the State of the Union

He shall from time to time give to the Congress Information of the State of the Union

This part of the clause imposes a duty rather than conferring a power. It is the basis for the annual State of the Union Address, but the Constitutional requirement wasn’t always fulfilled that way. In U.S. history there have only been 95 of the in-person speeches of the type that are televised today, and they were only named “state of the union” in 1947. The content has changed over time but has always been at the discretion of the president, who can withhold any information “in the public interest.”

Recommend to their Consideration

and recommend to their Consideration such Measures as he shall judge necessary and expedient

This bit is the formal basis of the President’s legislative leadership, which otherwise would be an oxymoron. However, according to the Annotated Constitution (p 599) it is not to blame for the slippery slope of growing presidential power throughout U.S. history. Instead the ol’ Annotated blames “the play of political and social forces” – particularly the rise of political parties. Discuss.

Convening and Adjourning Congress

he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper

The President has frequently summoned both Houses into “extra” or “special sessions” for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised. I’m glad of that, because the power to indefinitely adjourn Congress sounds a hell of a lot like the czar dissolving the Duma. And that ended well for everyone.

The Right of Reception

he shall receive Ambassadors and other public Ministers

Because the Constitution includes “and other public ministers” with ambassadors in this phrase, it places all diplomatic agents of foreign powers in the president’s wheelhouse. I’m not sure the courts have addressed whether Russian lobbyists count as diplomatic agents, but I’m hoping they will.By giving the president the right to receive foreign emissaries, it also gives him the right not to, basically reinforcing the idea that foreign relations belong to the executive. The Annotated Constitution (p 600) says

…this power makes the President the sole mouthpiece of the nation in its dealing with other nations.

I’m sure that sentence was much less terrifying when it was written. Even so, there is a lot of material there if you want to read more history. But TL;DR the courts and Congress have always backed the president on this.

The Take Care Clause

he shall take Care that the Laws be faithfully executed

Despite some confusion even at the highest levels of government,the president is not the deciderer. He is the enforcer, or, more cozily, the one who takes care of the laws. Attorney General Cushing in 1855:

It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offenses against the United States…”

He goes on to list a few other presidential powers but the key point is that, unlike the King of England, who must always act through agents,the president is personally obligated to fulfill executive responsibilities. A lawyer could make a career specializing in the distinctions between the president’s personal responsibilities to the office and the ones he delegates.But in general the courts have decided any duty cast by law upon the President maybe exercised by him through the head of the appropriate department, whose acts,if performed within the law, thus become the President’s acts. So however fun this clause may be for wonks to play with, in practice, it’s not so different from English law.

Commissioning Officers

and shall Commission all the Officers of the United States

The power to commission officers does oblige the President to commission someone. It only means that no one can do it. Marbury v. Madison determined that the sealing and delivery of the commission is a purely ministerial act which has been lodged by statute with the Secretary of State,and which may be compelled by mandamus unless the appointee has been in the meantime validly removed. By a later Attorney General opinion, even after the president has signed a commission, he can change his mind and so the appointee is not “in office” until the commission has been received.

Impoundment

This topic doesn’t seem to be directly related to the clause,but it first became an issue as part of an early Annual Message (proto-state-of-the-union-address) so it gets covered here. It’s another story about the ever-expanding powers of the president. In his third Annual Message to Congress, Jefferson reported that he had not spent some of the money Congress had appropriated for the purchase of gunboats. That sounds like a good thing, but it had unforeseen consequences.His initial delay in spending appropriated funds was followed by other presidents in minor instances, until FDR refused to spend money for the purposes appropriated. Nixon made impoundment official through a program to reduce public spending by negating programs established by Congressional legislation. The arguments for and against the legality of such actions were tested in court and are spelled out in the Annotated Constitution (p 616). New laws were passed and old ones changed to put boundaries on the president’s ability to impound funds, but in the end, the president had a power that wasn’t there before.

Et cetera

Unlike Article 1 Section 8, which goes into lengthy detail through 18 clauses enumerating the powers of Congress, Article 2 Section 3 vaguely and generally outlines the types of things the president is responsible for. So naturally there is a boatload of case law dealing with it. The Annotated Constitution talks about a lot of issues related to the powers of the president that aren’t quite spelled out in the Section, but I’m not going to dive into them here. If you want to look into it yourself:

•  Power and Duty of the President in Relation to Subordinate Executive Officers (p 619)

Can the president overrule his officers?

• Decentralizations vs. Centralism (p 620)
• Congressional Power vs. Presidential Duty to Law (p 621)

How much power does Congress have to mandate action by executive branch officials?

• Presidential Power Enforcing Penal Law (p 622)

It’s a serious Constitutional question, sweetened by the fact that understanding it involves studying a historical heist involving royal jewels.

• The President as Law Interpreter (p 623)

I’ll just quote: The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes.

I’d like to say ‘nuff said, but ye olde annotated says, “Nor is this the whole story.” Even without digging into the footnotes this is enough to make one yearn for a Constitutional scholar in the White House instead of…well, ‘nuff said.

• Military Power in Law Enforcement: The Posse Comitatus (p 624)

Shit. Not only would Posse Comitatus make a good band name, the  presidential power to call out the militia and/or regular military forces to squash rebellion and enact martial law at least deserves its own blog post. Which it will not be getting here today.

• Protection of American Rights Abroad (p 629)
• Presidential Action in the Domain of Congress – The Steel Seizure Case (p 632)
• Presidential Immunity from Judicial Direction (p 638)