The State of the Union Clause

[The President] shall from time to time give to the Congress Information of the State of the Union. . . .

—Chad Squitieri

Introduction

Most years, the President makes the short trip down Pennsylvania Avenue from the White House to the U.S. Capitol to provide a State of the Union address to Congress. This tradition dates back to “speeches of the throne” by the English monarch in medieval times. After ratification, President George Washington followed the Constitution’s instruction that the President “shall from time to time give to the Congress Information of the State of the Union.” Justice Joseph Story explained that the President’s constitutionally vested authority to “giv[e] information . . . 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.”¹

Washington and John Adams delivered their annual messages in person. However, Thomas Jefferson delivered his message in a letter. Jefferson began a new tradition that would continue until Woodrow Wilson’s in-person address in 1913. In modern times, Presidents have delivered their State of the Union addresses in person by using the modern technologies of the day, including radio, television, the Internet, and social media.

History Before 1787

The American conception of the State of the Union address finds historical support in the English monarch’s practice of delivering speeches to Parliament.² This English practice can be traced back to the medieval period.³ Following in the English tradition, at least one state required its executive to provide the state legislature with information; the New York constitution of 1777 provided that “it shall be the duty of the governor to inform the legislature, at every session, of the condition of the State.”⁴

The Constitutional Convention

An early version of the State of the Union Clause, evidently from proceedings referred to the Committee of Detail by a July 23, 1787, resolution, included language that would become the Recommendation Clause.⁵ The draft 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 (the State of the Union Clause and Recommendation Clause) would be separated in the Constitution as ratified. By referring to both a “Speech or Mess[a]g[e],” this early language would more explicitly have given the President a choice between giving a speech (the modern norm) or delivering a letter (Jefferson’s preference).

A document from the same proceedings referred to the Committee of Detail, believed to be part of the original plan proposed by Charles Pinckney, provided that “[i]t shall be [the President’s] Duty to inform the Legislature of the Condition of [the] U.S. so far as may respect his Department.”⁷ This language would have imposed an explicit “Duty” on the President to keep the legislature informed. Other drafts, however, did not include such an express reference to duty. For example, a proposal found in James Wilson’s papers stated that the President “shall from Time to Time give information (to the Legislature) of the State of the (Nation to the Legislature) (Union).”⁸ A later version, from proceedings referred to the Committee on Style on September 10, 1787, stated that the President “shall, from time to time, give to the Legislature information of the State of the Union.”⁹ The final version of the Clause, as adopted, retained “shall” but replaced “Legislature” with “Congress.”¹⁰

The ratified version of the State of the Union Clause gives rise to three primary questions: (1) Does the “shall” imply some sort of obligation, or does it merely suggest what the President would do in the normal course? (2) How often is “from time to time”? Does that mean annually or whenever the President deemed it necessary?¹¹ (3) Would the “information” be conveyed orally or in writing?

The Ratification Debates

There does not appear to have been any significant debate concerning the State of the Union Clause during the ratification process. In Federalist No. 77, Alexander Hamilton made a reference to a variety of constitutional provisions relating to the President’s relationship with Congress, including the State of the Union Clause, and explained that “no objection has been made” regarding those provisions, “nor could” the provisions “possibly admit of any” objections.

Early Practice

Washington gave the first State of the Union Message on January 8, 1790, just “a few days after the First Congress assembled for its second session.”¹² The address was delivered in the Senate chamber of Federal Hall in New York City. John Adams continued Washington’s practice and delivered each of his four State of the Union addresses in person. However, Adams’s final address, delivered in 1800, would prove to be the last in-person address delivered for more than a century.¹³

The break in tradition began with President Thomas Jefferson. In 1801, Jefferson began the practice of delivering his State of the Union address to Congress by written letter. Jefferson explained that a letter could be read at “the convenience of the Legislature,” and could respect “the economy of their time.”¹⁴ He concluded that a letter would also afford Congress “relief from the embarrassment of immediate answers on subjects not yet fully before them.”¹⁵

Modern Practice

In 1913, Woodrow Wilson resumed the practice of delivering in-person addresses.¹⁶ Wilson wanted to convey a personal connection: “[T]he President of the United States is a person, not a mere department of the Government hailing Congress from some isolated island of jealous power,” and “is a human being trying to cooperate with other human beings in a common service” in “his own voice.”¹⁷

Presidents have delivered their State of the Union addresses using the latest technologies of the day. In 1923, President Calvin Coolidge was the first President to broadcast his address over the radio; in 1947, President Harry Truman was the first President to broadcast his address on television; in 2002, President George W. Bush was the first President to use the Internet for a live presentation of his message; and in 2011, President Barack Obama was the first President to have his in-person address simultaneously live-tweeted on Twitter, the social media platform.¹⁸

Open Questions

• May Congress dictate when the President shall give the State of the Union address, or is that decision up to the President alone?
• May Congress impose limitations (or requirements) concerning the type of information that the President may (or must) convey to Congress pursuant to the State of the Union Clause?
• Must the President deliver the State of the Union address in person, or does a written version suffice?
• Who could enforce the clause if the President failed to give the message?

1. 3 Story’s Commentaries § 1555. ↩︎
2. Sudah Setty, The President’s Question Time: Power, Information, and the Executive Credibility Gap, 17 Cornell J.L. & Pub. Pol’y 247, 272 (2008). ↩︎
3. Henrik Woods, “My Lords and Gentlemen”: A Study of British Origins and the Evolution of the Canadian Throne Speech Genre 4–5 (2011). ↩︎
4. N.Y. Const. of 1777, art. XIX. ↩︎
5. Vasan Kesavan & J Gregory Sidak, The Legislator-in-Chief, 44 Wm. & Mary L. Rev. 1 (2002); J. Gregory Sidak, The Recommendation Clause, 77 Geo. L.J. 2079 (1989). ↩︎
6. 2 Farrand’s 129, 137, 145. ↩︎
7. Id. at 129, 157, 158. ↩︎
8. Id. at 129, 163, 171. ↩︎
9. Id. at 564–65, 574. ↩︎
10. Art III, § 3, cl. 2. ↩︎
11. Kesavan & Sidak, supra at 14–15. ↩︎
12. Id. at 15. ↩︎
13. President John Adams’s Annual Message of 1800 (Nov. 22, 1800), https://perma.cc/9NN8-HKRM. ↩︎
14. Thomas Jefferson, Letter to the President of the Senate and to the Speaker of the House of Representatives Regarding the President’s Annual Message (Dec. 8, 1801), https://perma.cc/45W6-74LS. ↩︎
15. Id. ↩︎
16. List of In-Person Annual Message and State of the Union Addresses, U.S. House of Representatives: History, Art & Archives, https://perma.cc/7DW5-5FPG; Keith E. Whittington, The State of the Union Is a Presidential Pep Rally, 28 Yale L. & Pol’y Rev. Inter Alia 37, 48 (2010). ↩︎
17. Woodrow Wilson, Address to a Joint Session of Congress on Tariff Reform (Apr. 8, 2013), https://perma.cc/4P8Z-98M6. ↩︎
18. Kajal Singh, This Day in History: One Huge Leap for Digital Communications at the White House, The White House (Dec. 6, 2014), https://perma.cc/XG8D-RM55. ↩︎