Brouhaha du Jour

Today’s brouhaha du jour reminds me that not only does running for political office not require one to understand the U. S. Constitution it does not require that the seeker have read it and the situation is even worse for pundits. Here’s the issue as presented by Chris Cilizza of CNN:

Sometimes the best power moves in politics are conveyed in the most mundane language.

“Sadly, given the security concerns and unless government re-opens this week, I suggest we work together to determine another suitable date after government has re-opened for this address or for you to consider delivering your State of the Union address in writing to the Congress on January 29,” wrote Speaker Nancy Pelosi to President Donald Trump on Wednesday.

Make no mistake: Pelosi’s decision to disinvite Trump from delivering his “State of the Union” address to Congress is a total power play designed to remind Trump that a) Congress is a co-equal branch of government and b) his willingness to keep the government shuttered until he gets money for a border wall is going to have impacts on him, too.
Just in case you missed that message, Pelosi delivered it again in an interview with CNN’s Ashley Killough. “This is a housekeeping matter in the Congress of the United States, so we can honor the responsibility of the invitation we extended to the President,” said Pelosi. “He can make it from the Oval Office if he wants.”

and here’s Article II Section 3 of the U. S. Constitution:

He shall from time to time give to the Congress Information on 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.

The Congress does not have the authority to invite or disinvite the president to anything. If that is the custom, it is a courtesy not a requirement. It has generally been held that it does not even have the authority to issue a subpoena to the president.

Now I happen to think that the practice of delivering the State of Union message publicly in person should be abandoned. I think it’s a custom unbecoming of a democracy and only began with Woodrow Wilson as a tool for rallying support. But not only does the president not require an invitation from the Congress to deliver it he or she can actually summon both houses of the Congress to deliver it.

11 comments… add one
  • PD Shaw Link

    My initial reaction is that Congress does have to agree to have the POTUS give a speech on the premises. Usually, its in the House, where there is better seating, but it could be in the Senate nonetheless. Washington and Adams gave a personal address, though I’m not sure where given that I don’t think the Capital was finished yet. Jefferson thought it unbecoming, and started a trend of written state of the unions until I believe Woodrow Wilson, who gave tons of tedious stemwinders.

    Trump should probably give the speech to the Senate or to the TV cameras from the Oval Office.

  • Guarneri Link

    The details be damned. Its been customary to have a televised address to Congress since LBJ. This is a stunt.

    Perhaps missed in the detail: Pelosi is signally that she has no intention to bargain and resolve this in the next two weeks. That’s her right, but spare me the esoteric arguments, Nancy.

  • steve Link

    I think PD has it. A SOTU doesn’t seem like an extraordinary Occasion. He can go to the Senate. Trump has already signaled the he has no intention to bargain and resolve this in the next two weeks. That is his right, but then he should go to the Senate where he would be more welcome, if he has to do it in public.


  • CuriousOnlooker Link

    I have to laugh. Just purely from the PR angle, it would have been better for Pelosi to do nothing; and let Trump have his 2 hours.

    Now it is Pelosi who “started it”, Trump is going to do a primetime speech (from the White House?) in front of Republican congressman as an unofficial State of the Union where he’ll blast Congressional Democrats anyway; and when the shutdown is resolved Trump will insist on doing an official state of the union in the House as well (where he will blast Congressional Democrats to their face).

    The shutdown is going past Jan 29th for sure.

  • Andy Link

    Please, I hope it gets canceled. It’s such a complete waste of time.

  • The SOTU has become little more than a wish list of proposals, most of which are never heard of again.

  • The President certainly does have the authority to reconvene Congress when it is out of session, although that is rather academic at this point since there is rarely a time when Congress is officially out of session anymore. However, I do not believe that this means he can compel Congress to allow him to address a Joint Session.

    Specifically, as I said in a comment on this topic at OTB, I am not aware of any time other than a Declaration of War that the President has used this authority, although I believe Lincoln used it to summon Congress to Washington after he took office in March 1861 to deal with the impending Civil War. It may have also happened at various other times in the 19th Century when Congress spent long amounts of time out of session and often was not officially in session in the time after Presidents were inaugurated, Additionally, the provision does not state that the President can compel Congress to appear in Joint Session so he can address them.

    Instead, the custom has always been that Congress invites the President to deliver the SOTU and that the President accepts the invitation, and that this is done in writing. There is nothing in the Constitution that says that the President can force the opposition party to attend an address, for example.

  • In other words you’re saying it’s ambiguous which I agree with. I guess my point in this post is to suggest that the Speaker’s power is not as clear cut as has been claimed in most opinion pieces from major media outlets.

    As to what should happen I think that Trump shouldn’t give an SOTU at all.

    The dictionary definition of “emergency” is

    a serious, unexpected, and often dangerous situation requiring immediate action

    Isn’t that how the Democrats have been characterizing the shutdown? To say that there is no emergency would be a bit strange at this point, effectively claiming that the shutdown wasn’t serious, unexpected, dangerous, or required immediate action.

  • If Congress were actually out of session, I’d agree that the relevant section might apply.

    However, Congress is not actually out of session. While floor business is not being conducted and votes are not scheduled to resume until Tuesday, the House (and Senate) are still holding pro forma sessions where the chamber is gaveled into session and then quickly gaveled out of session at least once every three days.

    Several years ago, the Supreme Court ruled that this was sufficient from a Constitutional point of view to meet the definition of being in session. This ruling came in NLRB v. Canning 574 U.S. ____ (2014)

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