The Recommendation Clause

Article II, section 3 of the Constitution provides that the President "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." The practical significance of the first part of the recommendation clause is evident every January, when the President addresses Congress. It also forms the basis for congressional demands for information from the President, which sometimes ignite controversies over executive privilege. But the second part of the recommendation clause, although an obscure provision, has great significance for federal lawmaking.

During the Reagan presidency, Congress frequently inserted into appropriations bills specific riders prohibiting the Executive Branch or an independent regulatory agency from advocating or even studying a change in a particular policy. For example, Congress prohibited the Executive from using appropriated monies to study or propose selling the Bonneville Power Administration or the Department of Energy's uranium enrichment facilities, and it prohibited the Office of Management and Budget (OMB) from expending any funds to review agricultural marketing orders. On another occasion, without amending the Sherman Act, Congress prohibited the expenditure of appropriated funds on "any activity, the purpose of which is to overturn or alter the per se prohibition on resale price maintenance in effect under Federal antitrust laws." The rider, which was enacted after the Department of Justice had filed its amicus brief in Monsanto Co. v. Spray-RiteService Corp., prevented Assistant Attorney General William F. Baxter from advocating in oral argument that the Supreme Court should adopt the rule of reason; the rider also prohibited the Antitrust Division from drafting legislation to extend the rule of reason to resale price maintenance.

I call such appropriations riders "muzzling laws." More precisely, I define a muzzling law to be any legislation that impairs the Executive's ability to deploy resources to study or advocate a change in the federal government's policies on a particular issue. Muzzling laws lack the predictability of legal boilerplate. They differ in the scope of the forbidden subject matter, in the specificity with which they identify the constrained Executive Branch officers, and in the degree to which they prohibit the use of funds appropriated under other appropriations laws. Despite these differences, all muzzling laws implicate, and many violate, the principle of separation of powers. When Congress prohibits the President from studying or advocating a change in policy, it impairs the President's ability to perform his constitutional duty to inform Congress and make recommendations for its consideration.

Part I of this Article examines the meaning of the recommendation clause. Part II argues that limiting principles for the clause cannot arise from Congress' appropriations power. Part III offers an economic rationale that accounts for the prevalence of muzzling laws. Part IV argues that muzzling laws violate the recommendation clause. Part V discusses the applicability of the recommendation clause to independent regulatory agencies. Finally, Part VI speculates about judicial review of a recommendation clause challenge to a muzzling law.

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