The Recommendation Clause

[The President] shall from time to time . . . recommend to [Congress’s] . . . Consideration such Measures as he shall judge necessary and expedient. . . .

—Chad Squitieri

Introduction

The Constitution ensures that the President plays a role in the federal lawmaking process from beginning to end. Specifically, the Recommendation Clause ensures that the President has the authority not only to identify problems but also to offer legislative solutions to those problems at the start of the process. And at the end of the process, the President’s veto authority (unless overridden) can halt legislation passed by both houses of Congress. In this regard, the Constitution “enables the President ‘to point out the evil [of legislation], and to suggest the remedy.”’¹

As Justice Joseph Story explained, the President’s authority to “recommend[] measures to congress, is so consonant with the structure of the executive departments of the colonial, and state governments . . . that it may well be presumed to be above all real objection.”² In modern times, Congress has attempted to restrict the ability of the executive branch to submit budget requests. Presidents have countered that such limitations would violate the Recommendation Clause.

History Before 1787

As St. George Tucker observed, “In England, the laws do, in fact, originate with the executive: a revenue bill is always proposed by the chancellor of the exchequer, or some member of that department; and . . . every other measure of considerable magnitude and importance is first discussed in the privy council, before it is brought into parliament.”³ The Recommendation Clause similarly permits legislative proposals to originate with a recommendation from the executive branch—subject, of course, to other portions of the Constitution, such as the Origination Clause.⁴

The Constitutional Convention

The drafting history sheds light on at least four important decisions with respect to the Recommendation Clause. The first decision separated the Recommendation Clause from the closely related State of the Union Clause.⁵ Early in the Convention, the two clauses were coupled, but an early draft, evidently from proceedings referred to the Committee of Detail by a July 23, 1787, resolution, provided that the President “shall propose to the Legisl[ature] from Time to Time by Speech or Mess[a]g[e] such Meas[ures] as concern this Union.”⁶ The two provisions would later be separated, which suggests that the President can make recommendations outside of the limited State of the Union setting.

The second decision imposed what is arguably a presidential duty.⁷ An August 6 draft document separating the State of the Union and Recommendation Clauses suggests that only the former would impose a presidential obligation: The President “shall, from Time to Time, give information to the Legislature” and “may recommend to their consideration such measures as he shall judge necessary, and expedient.”⁸ An August 24 draft changed the Recommendation Clause’s “may” to “shall.” As James Madison’s records indicate, the change was made “in order to make it the duty of the President to recommend, & thence prevent umbrage or cavil at his doing it.”⁹

The third decision was the choice of the word “measures.”¹⁰ A document evidently referred to the Committee of Detail on July 23 and found in James Wilson’s papers, specifies that the President “may recommend (Matters) to their Consideration.”¹¹ Later drafts, such as the one from August 6, continued to use “measures” rather than “matters.”¹² The use of “measures” suggests that the Framers envisioned the President as doing more than simply pointing out societal ills (“matters”) that Congress, in the President’s opinion, should consider remedying.¹³ Instead, the President was to recommend solutions (“measures”) to those societal ills.¹⁴ While “Matter” was defined as “Subject of . . . complaint,”¹⁵ “Measure” was defined as “Means to an end.”¹⁶

The fourth important decision was the decision to include “necessary and expedient” in the Recommendation Clause. A document evidently referred to the Committee of Detail on July 23, and believed to be part of the original plan proposed by Charles Pinckney, does not use “necessary and expedient.”¹⁷ Instead, it states that the President shall “recommend Matters to [Congress’s] consideration.”¹⁸ But the July 23 document found in James Wilson’s papers included a reference to “such measures as he shall judge nesy. & expedt.”¹⁹ Drafts from August 6,²⁰ and proceedings referred to the Committee of Style and Arrangement,²¹ similarly use the phrase “necessary, and expedient.” The Report of the Committee of Style dropped the comma and instead reads “necessary and expedient.”²² The comma-less “necessary and expedient” is what ultimately was ratified into law.²³

The Ratification Debates

The Recommendation Clause does not seem to have attracted much attention during the ratification debates. In Federalist No. 77, Alexander Hamilton referred to a variety of constitutional provisions relating to the President’s relationship with Congress, including the Recommendation Clause. He explained that “no objection has been made” regarding those provisions, “nor could” the provisions “possibly admit of any” objections.

Early Practice

In 1789, George Washington delivered his first inaugural address to Congress. He explained that “[b]y the article establishing the executive department it is made the duty of the President ‘to recommend to your consideration such measures as he shall judge necessary and expedient.’”²⁴ He concluded, however, that “[t]he circumstances” of that first speech “acquit[ted]” him “from entering into that subject further than to refer to the great constitutional charter under which you [Congress] are assembled, and which, in defining your powers, designates the objects to which your attention is to be given.”²⁵ A few months later, in January 1790, Washington directed Congress’s attention to a variety of subjects (albeit in broad terms), including military preparations, foreign relations, immigration, national currency, the postal system, promoting science and literature, and the advancement of “Agriculture, Commerce and Manufactures by all proper means,” although he was careful to note that he gave that last subject attention even though he “trust[ed]” it did “not . . . need recommendation.”²⁶

Like Washington, Joseph Story thought the Recommendation Clause imposed a duty. Story wrote that “[t]here is great wisdom . . . in not merely allowing, but in requiring, the president to lay before congress all facts and information, which may assist their deliberations.”²⁷

Recognizing the Recommendation Clause as a duty is consistent with the nature of the President’s office. “[T]he nature and duties of the executive department,” explained Story, indicate that the President “must possess more extensive sources of information, as well in regard to domestic as foreign affairs, than can belong to [C]ongress.”²⁸ Moreover, this informational advantage is further strengthened by the President’s authority to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices.”²⁹

Modern Practice

In the twentieth century, Congress has attempted to restrict the President’s powers to submit budget requests, and Presidents have claimed that such restrictions violate the Recommendation Clause. For example, in 1912, Congress passed an appropriations rider that purported to restrict the form and timing of how the executive branch could submit budget requests.³⁰ President William Howard Taft announced that he would not interpret the rider as having that effect, because such a restriction would “abridge the executive power in a manner forbidden by the Constitution.”³¹ Likewise, in 1966, Congress enacted an appropriations rider that purported to prohibit the executive branch from using appropriated funds to formulate certain budget requests. President Lyndon B. Johnson announced that the rider would “clearly intrude upon the Executive function of preparing the annual budget.”³² Presidents Ronald Reagan, Bill Clinton, George W. Bush, Barack Obama, and Donald Trump have similarly sought to defend their Recommendation Clause authority from congressional interference.³³

Judicial Precedent

The U.S. Supreme Court has not interpreted the Recommendation Clause directly. Various courts, however, have considered the clause in passing. The U.S. Court of Appeals for the D.C. Circuit observed that “all executive branch authority to recommend legislation derives” from “the Recommendation Clause.”³⁴ Taken literally, this conclusion would mean that the President has no authority to recommend legislation that the President concludes is not “necessary and expedient.” The Supreme Court has spoken of the President’s authority to propose legislation in looser terms, noting that the President has the authority to “recommend[] . . . laws he thinks wise.”³⁵

Although the Recommendation Clause speaks of presidential recommendations, some jurists have indicated that executive branch officials operating on behalf of the President may invoke the clause’s authority as well. The D.C. Circuit has explained that the Recommendation Clause empowers “the U.S. Department of Labor” to “ask Congress to update” a “statute to cover . . . new situation[s].”³⁶ However, then-Judge Brett Kavanaugh used more precise terms: “The Framers specifically contemplated . . . that there would be situations where the Executive Branch confronts a pressing need that it does not have current authority to address” but that “[i]n those circumstances, the Constitution’s Recommendation Clause provides that the President [and not the Executive Branch] may ‘recommend’ to Congress ‘such Measures as he shall judge necessary and expedient.’”³⁷

Open Questions

• May Congress enact a statute requiring the President to recommend legislation even when the President does not think a recommendation is “necessary and expedient”?
• May Congress prohibit the President from using government funds to research particular subjects, thereby limiting the President’s ability to make recommendations pertaining to those subjects?
• May executive officials other than the President invoke the Recommendation Clause to recommend measures to Congress if the President does not approve of such recommendations?
• Are political disputes concerning the meaning of “necessary and expedient” subject to judicial review?

1. Clinton v. City of New York, 524 U.S. 417, 438 n.27 (1998) (quoting 3 Story’s Commentaries § 1555). ↩︎
2. 3 Story’s Commentaries § 1555. ↩︎
3. St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia (1803), https://perma.cc/4SH8-G9JZ. ↩︎
4. Art. 1, § 7, cl. 1. ↩︎
5. Vasan Kesavan & J Gregory Sidak, The Legislator-in-Chief, 44 Wm. & Mary L. Rev. 1 (2002), and J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J. 2079 (1989). ↩︎
6. 2 Farrand’s 129, 137, 145. ↩︎
7. Sidak, supra at 2081–85. ↩︎
8. 2 Farrand’s 185 (emphases added). ↩︎
9. Id. ↩︎
10. Sidak, supra at 2084. ↩︎
11. 2 Farrand’s 171. ↩︎
12. Id. at 185. ↩︎
13. Sidak, supra at 2084. ↩︎
14. Id. ↩︎
15. Noah Webster, An American Dictionary of the English Language 819 (1828), https://perma.cc/2G4V-YKMV. ↩︎
16. Id. at 823. ↩︎
17. 2 Farrand’s 129, 157–58. ↩︎
18. Id. ↩︎
19. Id. at 171. ↩︎
20. Id. at 185. ↩︎
21. Id. at 565, 574. ↩︎
22. Id. at 590, 600. ↩︎
23. Art. II, § 3. ↩︎
24. George Washington, First Inaugural Address (Apr. 30, 1789), https://perma.cc/LQ2M-PLUD (emphasis added). ↩︎
25. Id. ↩︎
26. George Washington, First Annual Address to Congress (Jan. 8, 1790), https://perma.cc/ZG6J-9KM8. ↩︎
27. 3 Story’s Commentaries § 1555 (emphasis added). ↩︎
28. Id. ↩︎
29. Art. II, § 2. ↩︎
30. Act of Aug. 23, 1912, Pub. L. No. 62-299, § 9, 37 Stat. 360, 415. ↩︎
31. Application of the Recommendations Clause to Sec. 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 40 Op. O.L.C. 66, 72 (2016) (quoting Letter Sent by the President to the Secretary of the Treasury Relative to the Submission of a Budget to Congress 5 (Sept. 19, 1912)). ↩︎
32. Statement by the President Upon Signing the Department of Agriculture and Related Agencies Appropriations Bill (Sept. 8, 1966), in 2 Pub. Papers of Pres. Lyndon B. Johnson 980, 981 (1966). ↩︎
33. Benjamin J. Schwartz, The Recommendations Clause and the President’s Role in Legislation, 168 U. Pa. L. Rev. 767, 769, 784 (2020). ↩︎
34. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 908 (D.C. Cir. 1993). ↩︎
35. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). ↩︎
36. Dist. of Columbia v. Dept. of Lab., 819 F.3d 444, 450 (D.C. Cir. 2016). ↩︎
37. Coal. for Responsible Reg., Inc. v. EPA, 09-1322, 2012 WL 6621785, at *22 (D.C. Cir. Dec. 20, 2012) (Kavanaugh, J., dissenting from the denial of rehearing en banc) (emphases added). ↩︎