[The President] shall from time to time...recommend to their Consideration such Measures as he shall judge necessary and expedient....Article II, Section 3
Despite the Article I provision that "All legislative Powers herein granted shall be vested in a Congress of the United States," the Constitution gives the President, as James Madison put it in The Federalist No. 47, a significant "partial agency" in the legislative process. Among his most important legislative functions is the duty to recommend measures to the Congress. Through this provision, the President has come to play an important, and often primary, role in the legislative process, though it took more than a century for the implications of the Recommendations Clause to be fully developed. One reading of the Constitution is that Congress proposes legislation, then the President signs or vetoes the bill. In practice, Congress often waits for the President to propose legislation, and it is common for legislators to criticize him if he does not make such proposals.
At the Constitutional Convention, the clause originally contained the word "Matters," but the Framers changed it to "Measures," indicating that the President was to recommend specific legislation (including the improvement of existing legislation) and not simply put forth general ideas. On the motion of Gouverneur Morris, the Convention also changed the word "may" to "shall," as Morris stated, "in order to make it the duty of the President to recommend, & thence prevent umbrage or cavil at his doing it." Beyond those changes, there was little discussion. In The Federalist No. 77, Alexander Hamilton listed the provision among several minor presidential powers, commenting that "no objection has been made to this class of authorities; nor could they possibly admit of any."
Explicitly, the clause imposes a duty, but its performance rests solely with the President. Congress possesses no power to compel the President to recommend, as he alone is the "judge" of what is "necessary and expedient." Unlike the Necessary and Proper Clause of Article I, which limits Congress's discretion to effectuating only its delegated powers, the phrase "necessary and expedient" implies wider range of discretion for the President. Because this is a political question, there has been little judicial involvement with the President's actions under the clause as long as Presidents have not tried to extend their legislative powers. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Court noted that the Recommendations Clause serves as a reminder that the President cannot make law by himself: "The power to recommend legislation, granted to the President, serves only to emphasize that it is his function to recommend and that it is the function of the Congress to legislate." The Court made a similar point in striking down the line-item veto. Clinton v. City of New York (1998). When President William Jefferson Clinton attempted to shield the records of the President's Task Force on Health Care Reform as essential to his functions under the Recommendations Clause, a federal circuit court rejected the argument and noted, "[T]he Recommendation Clause is less an obligation than a right. The President has the undisputed authority to recommend legislation, but he need not exercise that authority with respect to any particular subject or, for that matter, any subject." Ass'n of American Physicians & Surgeons v. Clinton (1993).
The phrase "recommend to their Consideration" signifies the republican nature of the process. The President's recommendations are not royal edicts. They are suggestions to the people's and the states' representatives. His election is from a different constituency from either the House or the Senate, and his recommendations consequently provide a more national perspective for the Congress to consider. Combined with the later addition of the Freedom of Assembly and Petition Clause (in the First Amendment), the Recommendations Clause serves as an additional conduit for mediated public influence on the legislative process.
Except in times of emergency or war, early Presidents were not actively involved in trying to influence Congress. Washington sent only three proposals to Congress, and though Thomas Jefferson actively influenced the legislative process, he preferred to act behind the scenes rather than through formal recommendations. John Adams was more aloof than either. But as the national government became more involved in the economy (after the Interstate Commerce Act of 1887 and the development of the Industrial Revolution), Presidents began to try to affect congressional action.
Active presidential involvement in pressing for legislation began with Theodore Roosevelt and expanded during the presidency of Woodrow Wilson. With the approach of World War I, the executive branch drafted legislation before working with Congress. With the return of Republican Presidents in the 1920s, presidential activism decreased. The breakthrough of the modern presidency with respect to the legislative process came with Franklin D. Roosevelt's legendary Hundred Days. After calling the Seventy-Third Congress into special session on March 9, 1933, shortly after his inauguration, Roosevelt sent to Congress over the next 100 days a flurry of proposed laws intended to help the nation cope with the economic disaster of the Great Depression. Most of the laws were actually drafted in the White House, and the Democrat-controlled Congress passed most without hearings or any careful legislative scrutiny.
After FDR, presidentially inspired programs became a mainstay of the legislative process. Though reluctant at first, Dwight Eisenhower established the Office of Congressional Relations to assist him in dealing with Congress. The subsequent record of presidential administrations has been varied.
- Vasan Kesavan
- James Pfiffner
- Professor of Public Policy
- School of Public Policy
- George Mason University
- J. Gregory Sidak
- Chairman, Criterion Economics, L.L.C.
- Ronald Coase Professor of Law and Economics at Tilburg University in The Netherlands
- Criterion Economics, L.L.C.