b'Statutory Mandate to Propose Legislation in\nResponse to Medicare Funding Warning\nThe Recommendations Clause bars Congress from enacting laws that purport to prevent\nthe President from recommending legislation that he judges \xe2\x80\x9cnecessary and expedient.\xe2\x80\x9d\nThe Recommendations Clause bars Congress from enacting laws that purport to require\nthe President to recommend legislation even if he does not judge it \xe2\x80\x9cnecessary and\nexpedient.\xe2\x80\x9d\nSection 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of\n2003, which requires the President to submit \xe2\x80\x9cproposed legislation\xe2\x80\x9d in response to a\nMedicare funding warning under section 801(a)(2), contravenes the Recommendations\nClause and may be treated as advisory and non-binding.\nAugust 25, 2016\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF MANAGEMENT AND BUDGET\nSection 802 of the Medicare Prescription Drug, Improvement, and\nModernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (\xe2\x80\x9cMedicare Modernization Act\xe2\x80\x9d), provides that \xe2\x80\x9c[i]f there is a medicare funding\nwarning under section 801(a)(2) of the [Medicare Modernization Act]\nmade in a year, the President shall submit to Congress . . . proposed\nlegislation to respond to such warning.\xe2\x80\x9d Id. \xc2\xa7 802(a) (codified at 31\nU.S.C. \xc2\xa7 1105(h)(1)). We previously advised you that section 802 conflicts with the President\xe2\x80\x99s duty under the Recommendations Clause to\n\xe2\x80\x9crecommend to [Congress\xe2\x80\x99s] Consideration such Measures as he shall\njudge necessary and expedient,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3, and that the\nPresident may therefore continue to treat this provision as \xe2\x80\x9cadvisory and\nnot binding,\xe2\x80\x9d e.g., Office of Management and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2010 at 197 (2009)\n(\xe2\x80\x9cFY 2010 Budget Submission\xe2\x80\x9d). This memorandum opinion memorializes and further explains the basis for our advice.\nIn Part I, we describe the relevant provisions of the Medicare Modernization Act and summarize the Executive Branch\xe2\x80\x99s statements regarding\nsection 802. In Part II, we discuss the scope of the Recommendations\nClause. As we explain, while the Clause expressly states only that the\nPresident has the authority and duty to recommend to Congress those\n66\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\nmeasures that he judges necessary and expedient, our Office has long\nmaintained that the Clause\xe2\x80\x94like other provisions of Article II that assign\nresponsibilities to the President\xe2\x80\x94implicitly bars Congress from enacting\nlegislation that would prevent the President from exercising, or that would\nusurp, that authority and duty. Accordingly, as we explain in Part II.A, we\nbelieve the Clause bars Congress from enacting laws that purport to\nprevent the President from recommending legislation that he judges\n\xe2\x80\x9cnecessary and expedient.\xe2\x80\x9d And as we explain in Part II.B, we believe the\nClause also bars Congress from enacting laws that purport to require the\nPresident to recommend legislation even if he does not judge it \xe2\x80\x9cnecessary\nand expedient.\xe2\x80\x9d In Part III, we apply this interpretation of the Recommendations Clause to section 802, explaining that because it purports to direct\nthe President to \xe2\x80\x9csubmit to Congress . . . proposed legislation to respond\nto [a medicare funding] warning\xe2\x80\x9d without regard to whether the President\nconsiders such legislation \xe2\x80\x9cnecessary and expedient,\xe2\x80\x9d it conflicts with the\nRecommendations Clause.\nI.\nThe Medicare Modernization Act, enacted in 2003, made a variety of\nreforms to the Medicare system. Among other provisions, the Act contains several measures designed to contain the costs of Medicare expenditures. See Medicare Modernization Act tit. VIII. Section 801 of the\nAct provides that if Medicare trustees determine in two consecutive\nannual reports that the portion of total Medicare expenses funded from\ngeneral revenues, as opposed to dedicated Medicare financing sources, is\nprojected to exceed 45 percent for the fiscal year in which the report is\nsubmitted or for any of the succeeding six fiscal years, that determination\n\xe2\x80\x9cshall be treated as a medicare funding warning.\xe2\x80\x9d Id. \xc2\xa7 801(a)(2); see id.\n\xc2\xa7 801(a)(1)(B), (c)(1)\xe2\x80\x93(4). Section 802(a) added a new subsection (h) to\n31 U.S.C. \xc2\xa7 1105, the statute governing the President\xe2\x80\x99s annual budget\nsubmission. That new subsection provides that \xe2\x80\x9c[i]f there is a medicare\nfunding warning under section 801(a)(2) of the [Medicare Modernization\nAct] made in a year, the President shall submit to Congress, within the\n15-day period beginning on the date of the budget submission to Congress under [31 U.S.C. \xc2\xa7 1105(a)] for the succeeding year, proposed\nlegislation to respond to such warning.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1105(h)(1); see also\nMedicare Modernization Act \xc2\xa7 802(b) (stating that \xe2\x80\x9c[i]t is the sense of\n67\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nCongress\xe2\x80\x9d that \xe2\x80\x9clegislation submitted pursuant to section 1105(h) of title\n31, United States Code, in a year should be designed to eliminate excess\ngeneral revenue medicare funding . . . for the 7-fiscal-year period that\nbegins in such year\xe2\x80\x9d). Sections 803 and 804 provide that, once the President submits a proposal pursuant to section 802, members of each House\nof Congress \xe2\x80\x9cshall introduce such proposal (by request), the title of which\n[shall be] \xe2\x80\x98A bill to respond to a medicare funding warning.\xe2\x80\x99\xe2\x80\x9d Medicare\nModernization Act \xc2\xa7\xc2\xa7 803(a)(1), 804(a)(1). \xe2\x80\x9cSuch bill\xe2\x80\x9d must then be referred to the appropriate committees for consideration. Id. \xc2\xa7\xc2\xa7 803(a)(1)\xe2\x80\x93\n(2), 804(a)(1)\xe2\x80\x93(2); see also id. \xc2\xa7\xc2\xa7 803(b)\xe2\x80\x93(d), 804(b)\xe2\x80\x93(e) (setting forth\ncertain expedited procedures for consideration of bills to respond to a\nmedicare funding warning).\nUpon signing the Medicare Modernization Act in 2003, President\nBush stated that the Executive Branch would construe section 802 \xe2\x80\x9cin a\nmanner consistent with the President\xe2\x80\x99s constitutional authority . . . to\nrecommend for the consideration of the Congress such measures as the\nPresident judges necessary and expedient.\xe2\x80\x9d Statement on Signing the\nMedicare Prescription Drug, Improvement, and Modernization Act of\n2003 (Dec. 8, 2003), 2 Pub. Papers of Pres. George W. Bush 1698, 1698\n(2003). President Bush later responded to a medicare funding warning\nby submitting draft legislation to Congress. See H.R. 5480, 110th Cong.\n(2008). In response to a subsequent medicare funding warning, President\nObama\xe2\x80\x99s first budget submission stated that \xe2\x80\x9c[i]n accordance with the\nRecommendations Clause of the Constitution, the President considers\nth[e] requirement [in section 802] to be advisory and not binding,\xe2\x80\x9d but\nthat \xe2\x80\x9c[n]evertheless, the President has put forth Budget proposals that\nwould . . . address the warning conditions.\xe2\x80\x9d FY 2010 Budget Submission\nat 197\xe2\x80\x9398. President Obama\xe2\x80\x99s subsequent budget submissions have\nincluded similar language. 1\n\nSee Office of Management and Budget, Analytical Perspectives, Budget of the U.S.\nGovernment, Fiscal Year 2017 at 29 (2016); Office of Management and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2016 at 29\xe2\x80\x9330 (2015);\nOffice of Management and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2015 at 30 (2014); Office of Management and Budget, Analytical\nPerspectives, Budget of the U.S. Government, Fiscal Year 2014 at 57 (2013); Office of\nManagement and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal\nYear 2013 at 65\xe2\x80\x9366 (2012).\n1\n\n68\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\nII.\nThe Recommendations Clause provides that the President \xe2\x80\x9cshall from\ntime to time . . . recommend to [Congress\xe2\x80\x99s] Consideration such Measures as he shall judge necessary and expedient.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3.\nAlthough the express terms of the Clause state only that the President has\nthe duty and the authority to recommend measures he judges necessary\nand expedient, this Office has long maintained that the Clause implicitly\nprohibits Congress from enacting legislation that would prevent the\nPresident from exercising, or would usurp, that duty and authority. Accordingly, we have maintained for over half a century that Congress may\nnot enact statutes, commonly known as \xe2\x80\x9cmuzzling laws,\xe2\x80\x9d that purport to\nprevent the President from recommending legislation he thinks necessary\nand expedient. See, e.g., Constitutionality of a Joint Resolution Requiring\nthe President to Propose a Balanced Budget Every Year, 1 Op. O.L.C.\nSupp. 161, 161 (Aug. 16, 1955) (\xe2\x80\x9cConstitutionality of Joint Resolution\xe2\x80\x9d)\n(\xe2\x80\x9cIt appears too clear for serious question that a legislative fiat which\nseeks to remove the President\xe2\x80\x99s unlimited judgment in communicating\nwith the Congress is in violation of the [Recommendations Clause].\xe2\x80\x9d);\nLobbying by Executive Branch Personnel, 1 Op. O.L.C. Supp. 240, 246\n(Oct. 10, 1961) (\xe2\x80\x9c[A] literal interpretation of 18 U.S.C. \xc2\xa7 1913 which\nwould prevent the President or his subordinates from formally or informally presenting his or his administration\xe2\x80\x99s views to the Congress . . . as\nto the need for new legislation or the wisdom of existing legislation . . .\nwould raise serious doubts as to the constitutionality of the statute.\xe2\x80\x9d);\nAuthority of the United States to Enter Settlements Limiting the Future\nExercise of Executive Branch Discretion, 23 Op. O.L.C. 126, 147 (1999)\n(\xe2\x80\x9cAuthority to Enter Settlements\xe2\x80\x9d) (stating that \xe2\x80\x9cCongress . . . is powerless to restrict the President\xe2\x80\x99s discretionary exercise of \xe2\x80\x9d his \xe2\x80\x9cpower to\nmake recommendations to Congress\xe2\x80\x9d). And for more than thirty years,\nwe have also taken the position that Congress may not enact statutes that\npurport to require the President to recommend legislation even if he does\nnot consider it necessary and expedient. See, e.g., Memorandum for\nMichael J. Horowitz, Counsel to the Director and General Counsel,\nOffice of Management and Budget, from Theodore B. Olson, Assistant\nAttorney General, Office of Legal Counsel, Re: Chicago School Case at\n18 (Aug. 9, 1984) (\xe2\x80\x9cChicago School Case\xe2\x80\x9d) (concluding that \xe2\x80\x9cArt. II, \xc2\xa7 3\ninsulates the President from any compulsion to submit legislative pro69\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nposals that he does not judge to be necessary or expedient\xe2\x80\x9d); Constitutional Issues Raised by Commerce, Justice, and State Appropriations\nBill, 25 Op. O.L.C. 279, 283 (2001) (\xe2\x80\x9cUnder the Recommendations\nClause, Congress cannot compel the President to submit legislative\nproposals to Congress.\xe2\x80\x9d).\nWe believe these longstanding views are sound. First, as we explain in\nPart II.A, it is in our judgment straightforward to conclude from the text\nof the Recommendations Clause\xe2\x80\x94as well as from the Clause\xe2\x80\x99s purpose\nand longstanding practice\xe2\x80\x94that Congress may not enact laws that purport\nto prohibit the President from carrying out his duty to recommend to\nCongress \xe2\x80\x9csuch Measures as he shall judge necessary and expedient.\xe2\x80\x9d\nAlthough this conclusion does not directly bear on the constitutionality of\nsection 802, it provides important background for our later discussion.\nSecond, as we explain in Part II.B, we believe that the Recommendations\nClause also prevents Congress from enacting statutes that purport to direct\nthe President to recommend legislation regardless of whether he judges it\nnecessary and expedient. Such statutes would usurp the President\xe2\x80\x99s textually committed responsibility to \xe2\x80\x9cjudge\xe2\x80\x9d that the \xe2\x80\x9cMeasures\xe2\x80\x9d he recommends to Congress are \xe2\x80\x9cnecessary and expedient,\xe2\x80\x9d and for the bulk of the\nNation\xe2\x80\x99s history Congress has refrained from enacting, or the Executive\nhas resisted, laws of this kind.\nA.\nWe begin with the prohibition on muzzling laws, which we believe\nflows directly from the Clause\xe2\x80\x99s text. By providing that the President\n\xe2\x80\x9cshall\xe2\x80\x9d recommend to Congress \xe2\x80\x9csuch Measures as he shall judge necessary and expedient,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3, the Recommendations Clause\nimposes a \xe2\x80\x9cduty\xe2\x80\x9d on the President to make such recommendations,\nGeorge Washington, First Inaugural Address in the City of New York\n(Apr. 30, 1789), reprinted in 1 James D. Richardson, A Compilation of the\nMessages and Papers of the Presidents 51, 52 (1896); see Youngstown\nSheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (stating that the\nRecommendations Clause assigns the President the \xe2\x80\x9cfunction[]\xe2\x80\x9d of \xe2\x80\x9crecommending . . . laws he thinks wise\xe2\x80\x9d). Laws that prevent the President\nfrom recommending legislation to Congress, even if the President judges\nsuch legislation necessary and expedient, would disable the President\nfrom carrying out that constitutionally assigned duty. Such laws therefore\n70\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\ncontravene the plain text of the Clause. See Zivotofsky ex rel. Zivotofsky v.\nKerry, 135 S. Ct. 2076, 2094 (2015) (stating that a statute is \xe2\x80\x9cunlawful\nwhen it \xe2\x80\x98prevents the Executive Branch from accomplishing its constitutionally assigned functions\xe2\x80\x99\xe2\x80\x9d (quoting Nixon v. Adm\xe2\x80\x99r of Gen. Servs., 433\nU.S. 425, 443 (1977))); Schick v. Reed, 419 U.S. 256, 266 (1974) (explaining that the pardon power \xe2\x80\x9cflows from the Constitution alone . . . and\n. . . cannot be modified, abridged, or diminished by the Congress\xe2\x80\x9d).\nThe Clause\xe2\x80\x99s drafting history and evident purpose reinforce this\nstraightforward textual construction. As originally proposed by the Committee of Detail at the Constitutional Convention, the Recommendations\nClause stated that the President \xe2\x80\x9cmay recommend . . . such measures as he\nshall judge necessary, and expedient.\xe2\x80\x9d 2 Max Farrand, The Records of the\nFederal Convention of 1787 at 185 (1911) (\xe2\x80\x9cFarrand\xe2\x80\x9d) (emphasis added).\nOn the floor of the Convention, however, Gouverneur Morris moved to\namend the text to its present, mandatory form \xe2\x80\x9cin order to make it the duty\nof the President to recommend, & thence prevent umbrage or cavil at his\ndoing it.\xe2\x80\x9d Id. at 405; see James Madison, Notes of Debates in the Federal\nConvention of 1787 at 526 (Norton re-issue 1987). The Convention approved the amendment without objection. 2 Farrand at 405. The Clause\xe2\x80\x99s\ndrafters thus appear to have drafted the Clause to \xe2\x80\x9csquelch any congressional objections to the President\xe2\x80\x99s right to recommend legislation.\xe2\x80\x9d Ass\xe2\x80\x99n\nof Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 908 n.7\n(D.C. Cir. 1993). And as early commentators explained, the drafters chose\nto \xe2\x80\x9crequir[e]\xe2\x80\x9d the President to propose legislation in this manner because\nthey believed that, \xe2\x80\x9c[f ]rom the nature and duties of the executive department, he must possess more extensive sources of information . . . than can\nbelong to congress,\xe2\x80\x9d and so must be uniquely equipped \xe2\x80\x9cat once to point\nout the evil [that merits a legislative response], and to suggest the remedy.\xe2\x80\x9d Joseph Story, Commentaries on the Constitution of the United States\n\xc2\xa7 1555 (1833) (\xe2\x80\x9cStory\xe2\x80\x9d); see Clinton v. City of New York, 524 U.S. 417,\n438 n.27 (1998) (\xe2\x80\x9cArt. II, \xc2\xa7 3, enables the President \xe2\x80\x98to point out the evil,\nand to suggest the remedy.\xe2\x80\x99\xe2\x80\x9d (quoting Story \xc2\xa7 1555)). 2 Laws that prevent\nSee also 1 St. George Tucker, Blackstone\xe2\x80\x99s Commentaries: with Notes of Reference,\nto the Constitution and Laws, of the Federal Government of the United States; and of the\nCommonwealth of Virginia app. at 344 (1803) (\xe2\x80\x9cTucker\xe2\x80\x9d) (explaining that \xe2\x80\x9cany inconveniences resulting from new laws, or for the want of adequate laws upon any subject, more\nimmediately occur to those who are entrusted with the administration of the government,\n2\n\n71\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nthe President from recommending legislation contradict this objective by\ndenying him the \xe2\x80\x9cright to recommend legislation,\xe2\x80\x9d and thus the ability to\nshare with Congress his expertise and judgment concerning the need for\nnew laws.\nHistorical practice lends further support to the conclusion that Congress\nmay not forbid the President from recommending legislation. We have\nidentified no law enacted in the first 120 years after the Constitution\xe2\x80\x99s\nratification that purported to restrict the President\xe2\x80\x99s authority to recommend legislation he deems necessary and expedient. While it is possible\nthat some laws of this kind were enacted, our research suggests that they\nwere, at a minimum, uncommon. We have identified a handful of instances in the last century in which Congress has enacted such laws, but\nin those cases Presidents have consistently raised constitutional objections\nto, and refused to comply with, the laws at issue. In 1912, for instance,\nPresident Taft announced that he would not interpret an appropriations\nrider that purported to restrict the form and timing of the Executive\nBranch\xe2\x80\x99s budget requests to have \xe2\x80\x9cthe effect of forbidding the President\n. . . to communicate to Congress recommendations as to expenditures and\nrevenue,\xe2\x80\x9d because such a restriction would \xe2\x80\x9cabridge the executive power\nin a manner forbidden by the Constitution.\xe2\x80\x9d Copy of Letter Sent by the\nPresident to the Secretary of the Treasury Relative to the Submission of a\nBudget to Congress 5 (Sept. 19, 1912); see Act of Aug. 23, 1912, Pub. L.\nNo. 62-299, \xc2\xa7 9, 37 Stat. 360, 415. The following year, President Taft\nannounced that he was submitting a budget recommendation in apparent\ndefiance of the rider \xe2\x80\x9cpursuant to th[e] constitutional requirements\xe2\x80\x9d contained in the Recommendations Clause. 49 Cong. Rec. 3985 (Feb. 26,\n1913). In 1966, President Johnson stated that he would construe as advisory a rider that purported to prohibit executive officers from using apthan to others, less immediately concerned therein\xe2\x80\x9d); William Rawle, A View of the\nConstitution of the United States of America 172 (2d ed. 1829) (\xe2\x80\x9cRawle\xe2\x80\x9d) (\xe2\x80\x9c[S]upplied by\nhis high functions with the best means of discovering the public exigencies, and promoting the public good, [the President] would not be guiltless to his constituents if he failed\nto exhibit on the first opportunity, his own impressions of what it would be useful to do,\nwith his information of what had been done.\xe2\x80\x9d); Edward Dumbauld, The Constitution of\nthe United States 311 (1964) (\xe2\x80\x9cThe duty to furnish information and recommend measures\nto Congress makes it plain that it is not an officious intrusion upon the functions of the\nlegislative branch, violative of the principle of separation of powers, when the President\nproposes a program of lawmaking to meet the needs of the nation.\xe2\x80\x9d).\n\n72\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\npropriated funds to formulate particular budget requests because the rider\n\xe2\x80\x9cclearly intrude[d] upon the Executive function of preparing the annual\nbudget.\xe2\x80\x9d Statement by the President Upon Signing the Department of\nAgriculture and Related Agencies Appropriations Bill (Sept. 8, 1966),\n2 Pub. Papers of Pres. Lyndon B. Johnson 980, 981 (1966); see Department of Agriculture and Related Agencies Appropriations Act, 1967, Pub.\nL. No. 89-556, tit. I, 80 Stat. 689, 690 (1966). In 1987, President Reagan\nobjected to a provision enacted in 1985 and amended in 1987 that purported to bar the President\xe2\x80\x99s budget proposal from containing deficits in\nexcess of a specified amount. See Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. No. 100-119, \xc2\xa7 106(f ), 101\nStat. 754, 782; Balanced Budget and Emergency Deficit Control Act of\n1985, Pub. L. No. 99-177, \xc2\xa7 241(b), 99 Stat. 1038, 1063. The President\nsaid that this provision \xe2\x80\x9cmust be viewed as merely precatory\xe2\x80\x9d in light of\n\xe2\x80\x9cthe President\xe2\x80\x99s plenary power under [the Recommendations Clause] to\nsubmit to the Congress any legislation he deems necessary and expedient.\xe2\x80\x9d Statement on Signing the Bill to Increase the Federal Debt Ceiling\n(Sept. 29, 1987), 2 Pub. Papers of Pres. Ronald Reagan 1096, 1097\n(1987); see also Statement on Signing the Omnibus Budget Reconciliation Act of 1990 (Nov. 5, 1990), 2 Pub. Papers of Pres. George Bush\n1553, 1555 (1990) (raising a Recommendations Clause objection to a bill\nfurther amending this provision). And since 1998, each President has\nobjected on Recommendations Clause grounds to, and indicated that he\nwould construe as advisory, an annual appropriations rider purporting to\nwithhold payment from any person who prepares or submits a budget\nrequest for certain programs based on the assumption that Congress will\nenact proposals for new \xe2\x80\x9cuser fees.\xe2\x80\x9d 3\n3 See Statement on Signing the Omnibus Appropriations Act, 2009 (Mar. 11, 2009),\n1 Pub. Papers of Pres. Barack Obama 216, 217 (2009) (objecting to section 713 of the\nAgriculture, Rural Development, Food and Drug Administration, and Related Agencies\nAppropriations Act, 2009, Pub. L. No. 111-8, div. A, 123 Stat. 526, 555); Statement on\nSigning the Consolidated Appropriations Act, 2004 (Jan. 23, 2004), 1 Pub. Papers of Pres.\nGeorge W. Bush 126, 127 (2004) (objecting to section 721 of the Agriculture, Rural\nDevelopment, Food and Drug Administration, and Related Agencies Appropriations Act,\n2004, Pub. L. No. 108-199, div. A, 118 Stat. 4, 34); Statement on Signing the Omnibus\nConsolidated and Emergency Supplemental Appropriations Act, 1999 (Oct. 23, 1998),\n2 Pub. Papers of Pres. William J. Clinton 1843, 1848 (1998) (objecting to section 754 of\nthe Agriculture, Rural Development, Food and Drug Administration, and Related Agen-\n\n73\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nMoreover, as noted above, our Office has for decades consistently\nmaintained that muzzling laws violate the Recommendations Clause. In\n1955, for example, we objected to a bill that would have provided that\n\xe2\x80\x9cthe estimated expenditures contained in the Budget for the fiscal year for\nwhich presented shall not exceed the estimated receipts during such fiscal\nyear.\xe2\x80\x9d H.R.J. Res. 346, 84th Cong. (1955). We indicated that this provision would violate the Recommendations Clause by removing the President\xe2\x80\x99s \xe2\x80\x9cabsolute discretion as to the character of . . . recommendations he\nmay choose to transmit\xe2\x80\x9d and \xe2\x80\x9cfrustrat[ing] the President\xe2\x80\x99s responsibility\nof advising the Congress of the needs of the nation, the measures for\nfulfilling those needs, as his judgment dictates, and the required appropriations therefor.\xe2\x80\x9d Constitutionality of Joint Resolution, 1 Op. O.L.C. Supp.\nat 161; see supra note 3. In 1961, the Office advised the Criminal Division that there would be \xe2\x80\x9cserious doubts as to the constitutionality\xe2\x80\x9d of 18\nU.S.C. \xc2\xa7 1913, a statute that restricts the use of federal funds to lobby\nCongress, if it were construed to \xe2\x80\x9cprevent the President or his subordinates from formally or informally presenting his or his administration\xe2\x80\x99s\ncies Appropriations Act, 1999, Pub. L. No. 105-277, div. A, 112 Stat. 2681, 2681-33 to 34 (1998)); see also Statement on Signing the Consolidated Appropriations Act, 2004,\n1 Pub. Papers of Pres. George W. Bush at 127 (2004) (also objecting on Recommendations Clause grounds to a separate provision, section 404 of the Transportation, Treasury,\nand Independent Agencies Appropriations Act, 2004, Pub. L. No. 108-199, div. F, 118\nStat. 279, 333, which provided that \xe2\x80\x9c[n]o funds made available by this Act shall be used\nto transmit a fiscal year 2005 request for United States Courthouse construction\xe2\x80\x9d that did\nnot meet certain specified requirements).\nWe note that these user fee provisions\xe2\x80\x94as well as the statutes to which President\nReagan objected in 1987 and a bill to which our Office objected in 1955\xe2\x80\x94purported only\nto prohibit the President from recommending certain measures as part of \xe2\x80\x9cthe Budget\xe2\x80\x9d or\n\xe2\x80\x9c[t]he budget transmitted pursuant to\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1105(a). E.g., Agriculture, Rural\nDevelopment, Food and Drug Administration, and Related Agencies Appropriations Act,\n1999 \xc2\xa7 754; Balanced Budget and Emergency Deficit Control Act \xc2\xa7 241(b); H.R.J. Res.\n346, 84th Cong. (1955). Thus, these statutes may have left open the possibility that the\nPresident could recommend such measures through requests separate from his \xe2\x80\x9c[b]udget.\xe2\x80\x9d\nNonetheless, the Executive Branch treated each of these statutes as, at minimum, akin to\nmuzzling laws, in that they purported to prohibit the President from including in his\nbudget certain provisions he may have deemed \xe2\x80\x9cnecessary and expedient.\xe2\x80\x9d See, e.g.,\nStatement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, 2 Pub. Papers of Pres. William J. Clinton at 1848 (1998) (stating that\n\xe2\x80\x9c[s]ection 754 of the Agriculture/Rural Development appropriations section constrains my\nability to make a particular type of budget recommendation to the Congress\xe2\x80\x9d and so\n\xe2\x80\x9cwould interfere with my constitutional duty under the Recommendations Clause\xe2\x80\x9d).\n\n74\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\nviews to the Congress . . . as to the need for new legislation.\xe2\x80\x9d Lobbying by\nExecutive Branch Personnel, 1 Op. O.L.C. Supp. at 246. And in 1966, the\nOffice advised the Bureau of the Budget that the agriculture appropriations rider that President Johnson later stated he would construe as advisory was of \xe2\x80\x9cdoubtful constitutionality\xe2\x80\x9d in view of the Recommendations\nClause because it purported to \xe2\x80\x9climit the President\xe2\x80\x99s authority . . . [to]\nformulat[e] a budget estimate in excess of a stipulated amount.\xe2\x80\x9d Memorandum for the Files from Nathan Siegel, Office of Legal Counsel, Re:\nEnrolled Bill; Department of Agriculture Appropriation Act for fiscal\nyear ending June 30, 1967 (H.R. 14596) at 2 (Sept. 1, 1966). The Office\nhas raised similar objections on numerous occasions in the decades since. 4\nIn sum, the plain language and apparent purpose of the Recommendations Clause, together with consistent and longstanding historical practice,\nall support the conclusion that the Clause prohibits Congress from enacting legislation that purports to bar the President from recommending\nlegislative measures to Congress that he judges necessary and expedient. 5\n4 See, e.g., Letter for Lloyd Cutler, Counsel to the President, from Walter Dellinger,\nAssistant Attorney General, Office of Legal Counsel at 3\xe2\x80\x934 (July 20, 1994) (objecting to a\nprovision of a trade bill that would have required the President \xe2\x80\x9cto forbear from transmitting legislation to implement [a] free trade agreement for at least sixty days after signing\nsuch an agreement\xe2\x80\x9d); Memorandum for Bruce C. Navarro, Acting Assistant Attorney\nGeneral, Office of Legislative Affairs, from John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Re: S. 2411, att. at 2 (June 6, 1990) (objecting to a\nprovision of a trade bill that would have \xe2\x80\x9cprohibit[ed] the President from proposing\ndecreases in duties on textiles, textile products, and nonrubber footwear\xe2\x80\x9d); Letter for\nJames C. Miller III, Director, Office of Management and Budget, from John R. Bolton,\nAssistant Attorney General, Office of Legislative Affairs at 4 (Sept. 25, 1987) (advising\nthat the budget restriction to which President Reagan objected in 1987 must be construed\nas precatory in light of the President\xe2\x80\x99s \xe2\x80\x9cunfettered discretion to submit any budget he\nwishes\xe2\x80\x9d); see also Participation in Congressional Hearings During an Appropriations\nLapse, 19 Op. O.L.C. 301, 304 (1995) (stating that Congress\xe2\x80\x99s refusal to permit executive\nofficials to participate in a congressional hearing is not unconstitutional \xe2\x80\x9c[s]o long as the\nPresident retains a means of making legislative recommendations\xe2\x80\x9d).\n5 Although to our knowledge no court has disagreed with this conclusion, the D.C.\nCircuit stated in Ass\xe2\x80\x99n of American Physicians & Surgeons that \xe2\x80\x9cthe Recommendation\nClause is less an obligation than a right,\xe2\x80\x9d which the President \xe2\x80\x9cneed not exercise . . . with\nrespect to any particular subject or, for that matter, any subject.\xe2\x80\x9d 997 F.2d at 908. To the\nextent that the court was suggesting that the Clause does not impose any duty on the\nPresident to recommend legislation, we respectfully disagree. As we have explained, the\nplain language of the Clause provides that the President \xe2\x80\x9cshall . . . recommend to [Con-\n\n75\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nB.\nWe next address laws that purport to require the President to propose\nlegislation to Congress, regardless of whether the President judges such\nlegislation necessary and expedient. The language of the Recommendations Clause does not expressly address such laws. But for the reasons\nexplained below, we believe that the Clause\xe2\x80\x99s text, its purpose, and longstanding historical practice support the conclusion that such laws are\nunconstitutional.\n1.\nWe begin, again, with the text of the Clause. As we have noted, the\nClause imposes on the President a duty to \xe2\x80\x9crecommend to [Congress\xe2\x80\x99s]\nConsideration such Measures as he shall judge necessary and expedient.\xe2\x80\x9d\nU.S. Const. art. II, \xc2\xa7 3. By its plain terms, this duty has two parts: the\nPresident must \xe2\x80\x9crecommend to [Congress\xe2\x80\x99s] Consideration such Measures\nas . . . [are deemed] necessary and expedient,\xe2\x80\x9d and he must \xe2\x80\x9cjudge\xe2\x80\x9d which\nmeasures satisfy that standard. By imposing the latter responsibility, the\nClause assigns to the President the \xe2\x80\x9cobligation to judge personally which\nrecommendations should be made to Congress.\xe2\x80\x9d Authority to Enter Settlements, 23 Op. O.L.C. at 160; see id. (\xe2\x80\x9cThrough [the Recommendations\nClause], the Constitution expressly commits the President to exercise his\npersonal discretion in making legislative recommendations to Congress.\xe2\x80\x9d). Laws purporting to compel the President to recommend legislation to Congress, regardless of whether the President judges the enactment\nof such legislation necessary or expedient, would prevent the President\nfrom fulfilling that obligation, by requiring the President to recommend\ngress\xe2\x80\x99s] consideration such Measures as he shall judge necessary and expedient,\xe2\x80\x9d and the\nClause\xe2\x80\x99s drafters, as well as commentators dating to the Founding era, described it as\nimposing a \xe2\x80\x9cduty\xe2\x80\x9d or \xe2\x80\x9crequir[ement]\xe2\x80\x9d on the President. 2 Farrand at 405; Story \xc2\xa7 1555;\nRawle at 172. Nonetheless, we express no view on the D.C. Circuit\xe2\x80\x99s ultimate conclusion\nthat the application of the Federal Advisory Committee Act (\xe2\x80\x9cFACA\xe2\x80\x9d) to a presidential\ntask force does not raise a serious constitutional question under the Recommendations\nClause. See Ass\xe2\x80\x99n of Am. Physicians & Surgeons, 997 F.2d at 908. Unlike the statutes\ndiscussed in this opinion, FACA does not purport to prohibit the President from recommending legislation, or require him to recommend legislation even if he does not judge it\nnecessary and expedient, but instead contains publicity requirements that arguably affect\nthe President\xe2\x80\x99s ability \xe2\x80\x9cto receive confidential advice on proposed legislation.\xe2\x80\x9d Id. at 906.\n\n76\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\nlegislation that he has not judged necessary and expedient. Moreover,\nsuch laws would effectively arrogate to Congress the authority to make\nthat judgment, by requiring the President to recommend measures that\nCongress, and not the President, has judged necessary and expedient.\nThese statutes would thus appear not only to \xe2\x80\x9cprevent[]\xe2\x80\x9d the President\nfrom carrying out his own \xe2\x80\x9c\xe2\x80\x98constitutionally assigned function[],\xe2\x80\x99\xe2\x80\x9d Zivotofsky, 135 S. Ct. at 2094, but also to enable \xe2\x80\x9cCongress in effect [to]\nexercise\xe2\x80\x9d that function, id. at 2095. In both respects these laws therefore\nappear to violate the Recommendations Clause. See Section 609 of the FY\n1996 Omnibus Appropriations Act, 20 Op. O.L.C. 189, 195 (1996) (stating that Congress may neither \xe2\x80\x9c\xe2\x80\x98prevent[] the Executive Branch from\naccomplishing its constitutionally assigned functions\xe2\x80\x99\xe2\x80\x9d nor \xe2\x80\x9cattempt to\nexercise itself one of the functions that the Constitution commits solely to\nthe Executive\xe2\x80\x9d).\nWe recognize that the language of the Clause does not expressly state\nthat the President has a duty to judge that every measure he recommends\nto Congress is \xe2\x80\x9cnecessary and expedient.\xe2\x80\x9d It does not provide, for instance, that the President shall recommend \xe2\x80\x9conly such Measures as he\nshall judge necessary and expedient.\xe2\x80\x9d Accordingly, it could be argued that\nthe Clause requires the President to recommend those measures he thinks\nnecessary and expedient, but does not prohibit him from making other\nrecommendations, including recommendations mandated by Congress.\nSee Patricia A. Davis et al., Cong. Research Serv., RS22796, Medicare\nTrigger 5\xe2\x80\x936 (Feb. 8, 2016) (stating that the Clause does not \xe2\x80\x9cprevent\nCongress from directing the President to submit legislative recommendations\xe2\x80\x9d so long as it does not \xe2\x80\x9cprevent[] the President from submitting\nhis own legislative proposal[s]\xe2\x80\x9d (emphasis omitted)). But see id. at 6\n(stating that Congress may not \xe2\x80\x9cattempt[] to dictate the contents of a\nrequired legislative proposal\xe2\x80\x9d).\nIn our view, however, this construction of the Clause is significantly\nless plausible than the one we have historically adopted. To start, the\nRecommendations Clause is the sole provision of the Constitution that\naddresses the President\xe2\x80\x99s authority and duty to make recommendations to\nCongress. It delineates with some specificity the type of measures the\nPresident shall recommend (those that are deemed \xe2\x80\x9cnecessary and expedient\xe2\x80\x9d), and the officer who shall select those measures (the President). In\ncontrast, no provision of the Constitution expressly empowers Congress to\n77\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nrequire the President to recommend legislation. It is therefore reasonable\nto infer that the Recommendations Clause sets forth the sole circumstance\nin which the President may be required to recommend measures to Congress: when the President \xe2\x80\x9cjudge[s] [them] necessary and expedient.\xe2\x80\x9d U.S.\nConst. art. II, \xc2\xa7 3.\nMoreover, a number of other provisions in the Constitution are structured similarly to the Recommendations Clause\xe2\x80\x94directing \xe2\x80\x9csuch\xe2\x80\x9d action\nor result \xe2\x80\x9cas\xe2\x80\x9d a particular officer or entity determines is appropriate\xe2\x80\x94and\nin each instance of which we are aware, the Supreme Court has construed\nsuch provisions to grant the named officer or entity exclusive authority to\nmake the specified determination. The Court has said, for example, that\nthe clause in Article II, Section 1 stating that \xe2\x80\x9c[e]ach State shall appoint,\nin such Manner as the Legislature thereof may direct, a Number of Electors,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 1, cl. 2 (emphases added), leaves it \xe2\x80\x9cto the\nlegislature exclusively to define the method of \xe2\x80\x9d appointing presidential\nelectors, and so \xe2\x80\x9coperate[s] as a limitation upon the state in respect of any\nattempt to circumscribe the legislative power,\xe2\x80\x9d as well as a barrier against\n\xe2\x80\x9ccongressional and federal influence.\xe2\x80\x9d McPherson v. Blacker, 146 U.S. 1,\n25, 27, 35 (1892) (emphasis added). Similarly, the Court has held that\nArticle III, in providing that \xe2\x80\x9c[t]he judicial Power . . . shall be vested in\n. . . such inferior Courts as the Congress may from time to time ordain\nand establish,\xe2\x80\x9d U.S. Const. art. III, \xc2\xa7 1 (emphases added), grants Congress\n\xe2\x80\x9cthe sole power of creating the tribunals (inferior to the Supreme Court)\nfor the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them,\xe2\x80\x9d and thus prevents courts from \xe2\x80\x9cgo[ing] beyond [a] statute, and assert[ing] an authority with which they may not be invested by\nit.\xe2\x80\x9d Cary v. Curtis, 44 U.S. (3 How.) 236, 245 (1845) (emphasis added).\nThe Court has given a similar construction to several other, comparably\nworded grants of authority in the Constitution. 6 These cases suggest that\n6 See Wisconsin v. City of New York, 517 U.S. 1, 19 (1996) (stating that the requirement that an \xe2\x80\x9cactual Enumeration [of each state\xe2\x80\x99s population] shall be made . . . in such\nManner as [Congress] shall by Law direct,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 2, cl. 3 (emphases\nadded), \xe2\x80\x9cvests Congress with virtually unlimited discretion in conducting the decennial\n\xe2\x80\x98actual Enumeration\xe2\x80\x99\xe2\x80\x9d); Cook v. United States, 138 U.S. 157, 182 (1891) (stating that the\nrequirement that \xe2\x80\x9cwhen [a crime is] not committed within any State, the Trial shall be at\nsuch Place or Places as the Congress may by Law have directed,\xe2\x80\x9d U.S. Const. art. III, \xc2\xa7 2,\n\n78\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\nthe Recommendations Clause, in granting the President authority to\nrecommend \xe2\x80\x9csuch Measures as he shall judge necessary and expedient,\xe2\x80\x9d\nlikewise assigns the President the \xe2\x80\x9cexclusive[]\xe2\x80\x9d or \xe2\x80\x9csole\xe2\x80\x9d responsibility to\ndecide which measures the President shall recommend to Congress.\nThis interpretation of the Clause also accords with the construction\ngenerally given other grants of authority in Article II. The Supreme Court\nand the Executive Branch have repeatedly concluded that where Article II\nassigns a duty to the President, the President alone has discretion to execute that duty, and Congress may not command the President to exercise\nthat discretion in a particular circumstance. For example, the Attorney\nGeneral has determined that the Appointments Clause, which provides\nthat the President \xe2\x80\x9cshall nominate . . . Officers of the United States,\xe2\x80\x9d U.S.\nConst. art. II, \xc2\xa7 2, cl. 2, \xe2\x80\x9cleav[es] to the President . . . the designation of\nthe particular individuals who are to fill [an] office,\xe2\x80\x9d and so bars Congress\nfrom \xe2\x80\x9ccontrol[ling] the President\xe2\x80\x99s discretion to the extent of compelling\nhim to commission a designated individual.\xe2\x80\x9d Issuance of Commission in\nName of Deceased Army Officer, 29 Op. Att\xe2\x80\x99y Gen. 254, 256 (1911); see\nPub. Citizen v. Dep\xe2\x80\x99t of Justice, 491 U.S. 440, 483, 487 (1989) (Kennedy,\nJ., concurring in the judgment) (similar). The Supreme Court has held that\nthe Reception Clause, by providing that the President \xe2\x80\x9cshall receive\nAmbassadors and other public Ministers,\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3, empowers \xe2\x80\x9cthe President alone to receive ambassadors\xe2\x80\x9d and \xe2\x80\x9crecognize other\nnations,\xe2\x80\x9d and accordingly prohibits Congress from \xe2\x80\x9ccommand[ing] the\nPresident to state a recognition position inconsistent with his own.\xe2\x80\x9d Zivotofsky, 135 S. Ct. at 2085, 2095 (emphasis added). And this Office has\nconcluded that the Take Care Clause, by providing that the President\n\xe2\x80\x9cshall take Care that the Laws be faithfully executed,\xe2\x80\x9d U.S. Const. art. II,\n\xc2\xa7 3, gives the Executive \xe2\x80\x9cexclusive authority to prosecute violations of the\nlaw,\xe2\x80\x9d and so \xe2\x80\x9cgives rise to the corollary that neither the Judicial nor\ncl. 3 (emphases added), \xe2\x80\x9cimpose[s] no restriction as to the place of trial, except that the\ntrial cannot occur until congress designates the place, and may occur at any place which\nshall have been designated by congress previous to the trial\xe2\x80\x9d); Ex parte Siebold, 100 U.S.\n371, 397\xe2\x80\x9398 (1879) (stating that the Appointments Clause, by providing that \xe2\x80\x9cCongress\nmay by Law vest the Appointment of such inferior Officers, as they think proper, in the\nPresident alone, in the Courts of Law, or in the Heads of Departments,\xe2\x80\x9d U.S. Const.\nart. II, \xc2\xa7 2, cl. 2 (emphases added), makes \xe2\x80\x9cthe selection of the appointing power, as\nbetween the functionaries named, . . . a matter resting in the discretion of Congress\xe2\x80\x9d).\n\n79\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nLegislative Branches may . . . direct[] the Executive Branch to prosecute\nparticular individuals.\xe2\x80\x9d Prosecution for Contempt of Congress of an\nExecutive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 115 (1984).\nWe think it follows from these Article II precedents that the Recommendations Clause likewise vests the President with \xe2\x80\x9cexclusive authority\xe2\x80\x9d\nto decide which measures he shall recommend to Congress. It is true, of\ncourse, that the ability to make recommendations to Congress\xe2\x80\x94unlike the\nauthority to nominate officers, receive ambassadors, or enforce the laws\xe2\x80\x94\nis widely shared with other persons. See Ass\xe2\x80\x99n of Am. Physicians & Surgeons, 997 F.2d at 908 (\xe2\x80\x9cOnly the President can ensure that the laws be\nfaithfully executed, but anyone in the country can propose legislation.\xe2\x80\x9d).\nBut the President\xe2\x80\x99s authority to judge which measures \xe2\x80\x9c[h]e\xe2\x80\x9d\xe2\x80\x94that is, the\nPresident\xe2\x80\x94\xe2\x80\x9cshall . . . recommend\xe2\x80\x9d to Congress is unique, and consequential, and vested by the Recommendations Clause in him alone. U.S. Const.\nart. II, \xc2\xa7 3; see supra note 2 and accompanying text (discussing early\ncommentators who observed that the President is uniquely well equipped\nto identify problems and propose remedial legislation). Under the Court\xe2\x80\x99s\nand the Executive Branch\xe2\x80\x99s precedents, Congress therefore may not\nattempt to control that authority by requiring the President to recommend\nparticular measures to Congress.\n2.\nThe evident purpose of the Recommendations Clause also supports this\nreading. As we have discussed, the Clause\xe2\x80\x99s drafters chose to obligate the\nPresident to recommend measures to Congress in order to ensure that\nCongress would benefit from the President\xe2\x80\x99s expertise and judgment\nconcerning the need for new legislation. See supra note 2 and accompanying text. Commentators since the Founding era have offered several\nreasons why the President is uniquely equipped to facilitate \xe2\x80\x9cwise deliberations and mature decisions\xe2\x80\x9d by Congress, including that \xe2\x80\x9cany inconveniences resulting from new laws, or for the want of adequate laws upon any\nsubject, more immediately occur to those who are entrusted with the\nadministration of the government, than to others, less immediately concerned therein,\xe2\x80\x9d 1 Tucker app. at 344; that \xe2\x80\x9c[t]he true workings of the\nlaws\xe2\x80\x9d and \xe2\x80\x9cthe defects in the nature or arrangements of the general sys80\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\ntems [of industry and government] . . . are more readily seen, and more\nconstantly under the view of the executive, than they can possibly be of\nany other department,\xe2\x80\x9d Story \xc2\xa7 1555; and that the President is \xe2\x80\x9csupplied\nby his high functions with the best means of discovering the public exigencies, and promoting the public good,\xe2\x80\x9d Rawle at 172.\nThis objective would be at least partly undermined if the President\ncould be compelled to recommend legislation that he did not \xe2\x80\x9cjudge\nnecessary and expedient.\xe2\x80\x9d Such legislation would not reflect the President\xe2\x80\x99s expertise concerning \xe2\x80\x9cthe want of adequate laws,\xe2\x80\x9d 1 Tucker app.\nat 344, or his judgment as to \xe2\x80\x9cthe best means of . . . promoting the public\ngood,\xe2\x80\x9d Rawle at 172. Yet the President would nonetheless be compelled\nto take steps that would promote the passage of that legislation. He would\nbe required to devote the finite resources of the Executive Branch to\nformulating that legislation, rather than other laws he deemed necessary\nand expedient. Through his endorsement, he would be required to lend the\nlegislation the prestige and weight of the Presidency. And the President\nwould be required to falsely assert that he recommended that Congress\nenact such legislation, potentially causing members of Congress and the\npublic to believe his support was genuine and in fact derived from his\nexpertise and judgment\xe2\x80\x94a result we do not think implausible, given that\nlaws requiring the President to recommend legislation are sometimes\nburied in omnibus measures, and supporters of a bill would have little\nincentive to clarify that the President was speaking under compulsion.\nRather than advancing \xe2\x80\x9cwise deliberations and mature decisions,\xe2\x80\x9d such\ncompelled recommendations would thus increase the likelihood that\nCongress would enact laws the President thought unnecessary or even\ndetrimental to the public interest\xe2\x80\x94a result contrary to the one the Clause\nwas designed to achieve.\nFurthermore, compelled recommendations of this kind could impair the\nPresident\xe2\x80\x99s ability to effectively recommend measures he did judge necessary and expedient. If, for example, Congress could require the President\nto recommend legislation advancing a particular aim, yet the President\nbelieved that legislation advancing a contrary aim was \xe2\x80\x9cnecessary and\nexpedient,\xe2\x80\x9d the President would be compelled to submit two competing\nand inconsistent recommendations. The submission of two dueling recommendations would inevitably dilute the force and effectiveness of the\nPresident\xe2\x80\x99s true recommendation, and might well confuse some members\n81\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nof Congress and the public. As a result, Congress would be less likely to\ndiscern the President\xe2\x80\x99s actual view regarding \xe2\x80\x9c[t]he true workings of the\nlaws,\xe2\x80\x9d Story \xc2\xa7 1555, and \xe2\x80\x9cthe best means of . . . promoting the public\ngood,\xe2\x80\x9d Rawle at 172, and the legislation the President judged necessary\nand expedient would be less likely to be enacted.\nIndeed, for similar reasons, both the Supreme Court and the Executive\nBranch have recognized that where the Constitution assigns the President\nthe affirmative authority to speak, it must also prohibit Congress\xe2\x80\x94as \xe2\x80\x9ca\nmatter of both common sense and necessity,\xe2\x80\x9d Zivotofsky, 135 S. Ct.\nat 2095\xe2\x80\x94from compelling the President to make statements with which\nhe disagrees. Thus, in Zivotofsky, the Court held that because the President has the exclusive authority to make statements of diplomatic recognition, Congress may not \xe2\x80\x9ccommand the President to state a recognition\nposition inconsistent with his own,\xe2\x80\x9d even if that compelled statement\n\xe2\x80\x9cwould not itself constitute a formal act of recognition.\xe2\x80\x9d Id. \xe2\x80\x9cIf the power\nover recognition is to mean anything,\xe2\x80\x9d the Court explained, \xe2\x80\x9cit must mean\nthat the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his\nagent\xe2\x80\x99s statements.\xe2\x80\x9d Id. at 2094\xe2\x80\x9395. Similarly, the Executive Branch has\nlong maintained that the President\xe2\x80\x99s \xe2\x80\x9cexclusive authority to conduct\nnegotiations on behalf of the United States with foreign governments\xe2\x80\x9d\nimplicitly precludes Congress from directing the President to engage in\nparticular negotiations or take particular diplomatic positions, because\nsuch laws would prevent the United States from \xe2\x80\x9cspeak[ing] with one\nvoice.\xe2\x80\x9d Message to the Senate Returning Without Approval the Bill Prohibiting the Export of Technology for the Joint Japan-United States Development of FS-X Aircraft (July 31, 1989), 2 Pub. Papers of Pres. George\nBush 1042, 1043 (1989). 7 Here too, we think that the President\xe2\x80\x99s authority to recommend measures he thinks necessary and expedient \xe2\x80\x9ccould be\nundermined,\xe2\x80\x9d and the purpose underlying the Clause subverted, if Congress could require the President to \xe2\x80\x9cpresent[] a contradictory recommendation to Congress.\xe2\x80\x9d Authority to Enter Settlements, 23 Op. O.L.C. at 161.\n\nCf. Wooley v. Maynard, 430 U.S. 705, 714 (1977) (stating that because the First\nAmendment guarantees individuals \xe2\x80\x9cthe right to proselytize religious, political, and\nideological causes,\xe2\x80\x9d it \xe2\x80\x9cmust also guarantee the concomitant right to decline to foster such\nconcepts\xe2\x80\x9d).\n7\n\n82\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\n3.\nHistorical practice, while not uniform, also generally supports the view\nthat Congress cannot require the President to recommend legislation\nregardless of whether he judges that legislation necessary and expedient.\nWe have not located any laws requiring the President to recommend\nlegislation that were enacted by Congress during the first nearly 150 years\nafter the Constitution\xe2\x80\x99s ratification. 8 It is of course possible that Congress\nenacted some laws of this kind, but (as before) our research suggests that\nthey were, at minimum, uncommon during that period. Moreover, we\nhave identified a number of statements from the same period suggesting\nthat members of Congress interpreted the Recommendations Clause to\nvest the President with exclusive discretion to determine what measures\nhe would recommend to Congress. For example, in 1835, Senator Benton\nproposed a resolution requesting that the President identify the appropriations necessary to purchase certain specified military items. Cong. Globe,\n23d Cong., 2d Sess. 233 (Feb. 12, 1835). Senator Poindexter objected that\nit was improper to \xe2\x80\x9cmake a call on any executive officer, any head of a\ndepartment, for anything but facts,\xe2\x80\x9d because the Recommendations Clause\ndirected the President to \xe2\x80\x9ctreat of these [appropriations] matters in his\nannual message to Congress, if he considered that they were deserving of\nnotice,\xe2\x80\x9d and the resolution was subsequently withdrawn. 11 Reg. Deb.\n455\xe2\x80\x9356 (Feb. 16, 1835). In 1865, when discussing a bill that would have\nrequired members of the Executive Branch to answer questions posed to\nthem by Congress, Representative Morrill stated that the President \xe2\x80\x9calone\nis made the judge of what information or measures are \xe2\x80\x98necessary and\nexpedient\xe2\x80\x99 for him to communicate,\xe2\x80\x9d and that members of Congress\n8 In 1789, Congress enacted a statute providing that \xe2\x80\x9cit shall be the duty of the Secretary of the Treasury to digest and prepare plans for the improvement and management of\nthe revenue, and for the support of public credit.\xe2\x80\x9d Act of Sept. 2, 1789, ch. 12, \xc2\xa7 2, 1 Stat.\n65, 65. This statute did not require any officer to make recommendations to Congress,\nmuch less recommendations of legislation. Indeed, the House of Representatives rejected\nlanguage in a prior draft of the statute that would have required the President to \xe2\x80\x9cdigest\nand report plans,\xe2\x80\x9d 1 Annals of Cong. 592, 607 (June 25, 1789) (emphasis added), because\nmembers were concerned that directing the Secretary to report legislation to Congress\nwould raise Origination Clause concerns, see, e.g., id. at 593 (statement of Rep. Tucker)\n(\xe2\x80\x9cHow can [a bill for raising revenue] originate in this House, if we have it reported to us\nby the Minister of Finance?\xe2\x80\x9d).\n\n83\n\n\x0c40 Op. O.L.C. 66 (2016)\n\ntherefore could not \xe2\x80\x9cbring the House to a direct vote upon the necessity\nand expediency.\xe2\x80\x9d Cong. Globe, 38th Cong., 2d Sess. 422 (Jan. 25, 1865)\n(emphasis added). 9 And while these legislative proposals might themselves suggest that some members of Congress held a contrary view, we\nhave not located any comparable statements, even by the bills\xe2\x80\x99 supporters,\narticulating a different view of the Recommendations Clause.\nThe Budget and Accounting Act, 1921, Pub. L. No. 67-13, 42 Stat. 20,\nmight at first seem to be an example of a law, supported by both Congress\nand the Executive, that required the President to recommend legislation\neven if he did not think it necessary and expedient. Among other things,\nthat legislation required the President to \xe2\x80\x9ctransmit to Congress on the first\nday of each regular session, the Budget,\xe2\x80\x9d which was to contain \xe2\x80\x9c[e]stimates of the expenditures and appropriations necessary in [the President\xe2\x80\x99s] judgment for the support of the Government for the ensuing fiscal\nyear.\xe2\x80\x9d Id. \xc2\xa7 201(a) (codified as amended at 31 U.S.C. \xc2\xa7 1105(a)(5)).\nPresident Wilson vetoed an earlier version of this legislation, but not on\nRecommendations Clause grounds, 50 Cong. Rec. 8609\xe2\x80\x9310 (June 4,\n1920), and President Harding subsequently signed it, 61 Cong. Rec. 2500\n(June 13, 1921). Presidents since have attempted to meet its requirements.\nOn close examination, however, we do not believe that the Budget and\nAccounting Act supports the conclusion that Congress may require the\nPresident to recommend legislation. As an initial matter, because it is\ndifficult to imagine a situation in which the federal government would not\nneed funding legislation, it is not clear that the Executive Branch\xe2\x80\x99s general compliance with the Act suggests that it believes that Congress can\ncompel it to propose legislation: the Act may simply represent a case in\nSee also, e.g., 71 Cong. Rec. 3975 (Sept. 26, 1929) (statement of Sen. Reed) (stating,\nin response to another Senator\xe2\x80\x99s complaint that the President had offered his views on a\npending bill, that \xe2\x80\x9c[i]t is the plain meaning of th[e] language in the [Recommendations\nClause] that it is for the President\xe2\x80\x99s judgment to settle the time and the subject of his\nrecommendations\xe2\x80\x9d); 33 Cong. Rec. 980 (Jan. 19, 1900) (statement of Sen. Teller) (stating\nthat \xe2\x80\x9cI have not any doubt that we have a right to call on the President for information,\xe2\x80\x9d\nbut that by virtue of the State of the Union and Recommendations Clauses \xe2\x80\x9cit is discretionary with him what he sends\xe2\x80\x9d); Cong. Globe, 30th Cong., 1st Sess., app. at 110 (Jan.\n19, 1848) (statement of Rep. Hall) (arguing that the State of the Union and Recommendations Clauses entitle the President to \xe2\x80\x9cjudge for himself the obligations of [his] duty\xe2\x80\x9d to\n\xe2\x80\x9cfurnish [Congress] with information,\xe2\x80\x9d and that Congress can \xe2\x80\x9cadvise him, but [not]\ndirect him . . . as to his proper course of conduct\xe2\x80\x9d (emphasis added)).\n9\n\n84\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\nwhich Congress legislated procedures for recommending legislation\xe2\x80\x94a\nbudget of some form\xe2\x80\x94that both the Executive and Congress agree will\nalways be \xe2\x80\x9cnecessary and expedient.\xe2\x80\x9d Moreover, no provision of the Act\nrequired the President to recommend any legislation he did not believe\n\xe2\x80\x9cnecessary and expedient.\xe2\x80\x9d As we have noted, section 201(a) of the Act\nrequired the President to propose a budget containing \xe2\x80\x9c[e]stimates of the\nexpenditures and appropriations necessary in [the President\xe2\x80\x99s] judgment\nfor the support of the Government for the ensuing fiscal year\xe2\x80\x9d (emphasis\nadded). This provision thus required the President to propose appropriations only if he deemed them \xe2\x80\x9cnecessary,\xe2\x80\x9d a requirement that is consistent\nwith the President\xe2\x80\x99s constitutional duty to recommend legislation that \xe2\x80\x9che\nshall judge necessary and expedient.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3; see also\nBudget and Accounting Act \xc2\xa7 202(b) (codified as amended at 31 U.S.C.\n\xc2\xa7 1105(c)) (stating that if the President\xe2\x80\x99s budget estimates a surplus, the\nPresident \xe2\x80\x9cshall make such recommendations as in his opinion the public\ninterests require\xe2\x80\x9d (emphasis added)). Sections 202(a) and 203(b) of the\nAct required the President, in case of an estimated budget deficit, to\n\xe2\x80\x9cmake recommendations to Congress for new taxes, loans, or other\nappropriate action to meet the estimated deficiency.\xe2\x80\x9d Budget and Accounting Act \xc2\xa7\xc2\xa7 202(a), 203(b) (codified as amended at 31 U.S.C.\n\xc2\xa7\xc2\xa7 1105(c), 1107). But both provisions are open to the reading that the\nPresident could decline to \xe2\x80\x9crecommend[]\xe2\x80\x9d any \xe2\x80\x9caction\xe2\x80\x9d if he did not\nbelieve one was \xe2\x80\x9cappropriate,\xe2\x80\x9d and both left the President free to propose actions other than legislation if he deemed them appropriate. 10\nIn the middle of the twentieth century, Congress did begin to enact\nstatutes requiring the President to recommend legislation of Congress\xe2\x80\x99s\nchoosing. As far as we are aware, the Executive did not object to these\nrequirements at first. In 1948, for example, Congress enacted a law requiring the President to \xe2\x80\x9crecommend to the Congress legislation with\nrespect to the disposal of the Government-owned rubber-producing facilities.\xe2\x80\x9d Rubber Act of 1948, Pub. L. No. 80-469, \xc2\xa7 9(a), 62 Stat. 101, 105.\n\nWe express no view on whether sections 202(a) and 203(b), to the extent that they\nare construed to require the President to propose some \xe2\x80\x9cappropriate action,\xe2\x80\x9d are consistent\nwith the Recommendations Clause or any other provision of the Constitution. We simply\nnote that, even on that reading, they are not examples of laws requiring the President to\nrecommend legislation.\n10\n\n85\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nThe President raised no objection to this statute under the Recommendations Clause and appears subsequently to have complied with it. See\nMemorandum for the Attorney General from J. Lee Rankin, Assistant\nAttorney General, Office of Legal Counsel, Re: R.F.C. Plan for Disposal\nof Government-owned Rubber-producing Facilities (Apr. 8, 1953) (discussing the President\xe2\x80\x99s legislative recommendation pursuant to the Rubber Act). Over the succeeding three decades, Congress enacted numerous\nother laws requiring members of the Executive Branch to recommend\nspecified legislation. See, e.g., Clean Water Act of 1977, Pub. L. No. 95217, sec. 72, \xc2\xa7 516(e), 91 Stat. 1566, 1609; Federal Employees\xe2\x80\x99 Compensation Act Amendments of 1960, Pub. L. No. 86-767, sec. 209, \xc2\xa7 35(b),\n74 Stat. 906, 909; Act of Sept. 2, 1958, Pub. L. No. 85-861, sec. 2(A),\n\xc2\xa7 123(b), 72 Stat. 1437, 1437; Act of June 19, 1951, Pub. L. No. 82-51,\nsec. 1( j), \xc2\xa7 4(k)(7), 65 Stat. 75, 81\xe2\x80\x9382. We are unaware of an instance\nfrom the 1950s through the 1970s in which the Executive Branch lodged\nan objection to this kind of requirement on Recommendations Clause\ngrounds.\nBeginning in 1981, however, the Executive began to object to such requirements. That year, our Office advised that \xe2\x80\x9ca statutory direction to the\nPresident to include any particular request in the budget he submits to\nCongress would be of doubtful constitutionality\xe2\x80\x9d under the Recommendations Clause. Memorandum for Robert A. McConnell, Assistant Attorney\nGeneral, Office of Legislative Affairs, from Theodore B. Olson, Assistant\nAttorney General, Office of Legal Counsel, Re: Section 108(a)(1) of H.R.\n3499 as Revised in Conference, att. at 1 (Oct. 9, 1981). In 1984, we explained to the Office of Management and Budget that we had \xe2\x80\x9cconcluded\non more than one occasion that bills that purport to require the President\nto submit specific budget proposals\xe2\x80\x94notwithstanding his disagreement\nwith them\xe2\x80\x94would unconstitutionally infringe on the President\xe2\x80\x99s Art. II,\n\xc2\xa7 3 power to make whatever legislative recommendations he deems appropriate.\xe2\x80\x9d Chicago School Case at 18. Since then, each President has\nmaintained that laws requiring the President to recommend legislation to\nCongress violate the Recommendations Clause and should be construed\nas advisory. See, e.g., Statement on Signing the Omnibus Appropriations\nAct, 2009, 1 Pub. Papers of Pres. Barack Obama at 217 (2009); Statement on Signing the Child Abuse, Domestic Violence, Adoption and\nFamily Services Act of 1992 (May 28, 1992), 1 Pub. Papers of Pres.\n86\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\nGeorge Bush 838, 838 (1992); Statement on Signing the Military Construction Appropriations Act, Fiscal Year 1989 (Sept. 27, 1988), 2 Pub.\nPapers of Pres. Ronald Reagan 1230, 1230 (1988\xe2\x80\x9389); Presidential\nSigning Statements, 31 Op. O.L.C. 23, 31 (2007) (observing that President George W. Bush objected to laws requiring the Executive to recommend legislation \xe2\x80\x9cin approximately 67 of his 126 constitutional\nsigning statements\xe2\x80\x9d prior to January 26, 2007, and that his objections on\nthe subject were \xe2\x80\x9cindistinguishable from President Clinton\xe2\x80\x99s\xe2\x80\x9d). And this\nOffice has expressed the same view in several published opinions and\nnumerous comments on bills pending in Congress. 11\nIn sum, for nearly 150 years after the Constitution\xe2\x80\x99s ratification, Congress appears not to have enacted any law requiring the President to\nrecommend legislation even if he did not judge that legislation necessary\nand expedient. And although for a few decades Congress did enact such\nlaws without meeting resistance from the Executive, since 1981 the Executive has consistently maintained that laws of this kind are unconstitutional. On balance, then, historical practice confirms our view that the\nRecommendations Clause is best read to prohibit Congress from enacting\nlaws that require the President to recommend legislation regardless of\nwhether he judges it necessary and expedient.\nIII.\nApplication of these principles to section 802 of the Medicare Modernization Act is straightforward. Section 802 does not prohibit the President\nfrom recommending legislation. But it does purport to require the President to recommend legislation regardless of whether he believes it is\nnecessary and expedient. As noted above, section 802(a) added to 31\nU.S.C. \xc2\xa7 1105 a provision that reads:\n\nSee, e.g., Authority to Enter Settlements, 23 Op. O.L.C. at 160 (stating that the\nClause \xe2\x80\x9cexpressly commits the President to exercise his personal discretion in making\nlegislative recommendations to Congress\xe2\x80\x9d); Constitutional Issues Raised by Commerce,\nJustice, and State Appropriations Bill, 25 Op. O.L.C. at 283 (\xe2\x80\x9cUnder the Recommendations Clause, Congress cannot compel the President to submit legislative proposals to\nCongress.\xe2\x80\x9d); Presidential Signing Statements, 31 Op. O.L.C. at 31 (stating that \xe2\x80\x9cthe\nConstitution vests the President with discretion to [recommend legislation] when he sees\nfit\xe2\x80\x9d).\n11\n\n87\n\n\x0c40 Op. O.L.C. 66 (2016)\n\nIf there is a medicare funding warning under section 801(a)(2) of the\nMedicare Prescription Drug, Improvement, and Modernization Act\nof 2003 made in a year, the President shall submit to Congress, within the 15-day period beginning on the date of the budget submission\nto Congress under subsection (a) for the succeeding year, proposed\nlegislation to respond to such warning.\n31 U.S.C. \xc2\xa7 1105(h)(1).\nThis provision is drafted in mandatory terms that do not permit the\nPresident to decline to \xe2\x80\x9csubmit . . . proposed legislation\xe2\x80\x9d if he concludes\nthat no such legislation would be necessary and expedient. Section 802\ndoes not, for example, state that the President must submit \xe2\x80\x9cany\xe2\x80\x9d proposals for legislation, or submit proposals \xe2\x80\x9cas appropriate\xe2\x80\x9d\xe2\x80\x94language\nthat would permit him to decline to recommend measures that he does not\njudge necessary or expedient. Cf., e.g., Medicare Modernization Act\n\xc2\xa7 109(d)(2) (\xe2\x80\x9cNot later than June 1, 2006, the Secretary shall submit to\nCongress a report on the results of the study described in paragraph (1),\nincluding any recommendations for legislation.\xe2\x80\x9d); 15 U.S.C. \xc2\xa7 3117(b)\n(\xe2\x80\x9cThe President shall recommend in the President\xe2\x80\x99s Budget, as appropriate, new programs or modifications to improve existing programs concerned with private capital formation.\xe2\x80\x9d). Indeed, it is clear that section\n802 requires the President to submit an actual proposed bill. The \xe2\x80\x9cproposed legislation\xe2\x80\x9d submitted by the President must be introduced in both\nhouses of Congress, with the addition only of a title, within three legislative days after the President submits his proposal, and each House must\nthen refer \xe2\x80\x9c[s]uch bill\xe2\x80\x9d to the appropriate committees for consideration.\nMedicare Modernization Act \xc2\xa7\xc2\xa7 803(a)(1)\xe2\x80\x93(2), 804(a)(1)\xe2\x80\x93(2); see id.\n\xc2\xa7\xc2\xa7 803(b)\xe2\x80\x93(d), 804(b)\xe2\x80\x93(e) (setting forth expedited procedures for consideration of bills to respond to a medicare funding warning).\nBecause section 802 requires the President to recommend that Congress\nenact legislation to respond to a medicare funding warning, regardless of\nwhether the President judges any such legislation necessary and expedient, it falls squarely within the scope of our analysis above. We therefore\nconclude that section 802 violates the Recommendations Clause. As a\nresult, it is permissible for the President to continue to treat section 802 as\n\xe2\x80\x9cadvisory and not binding,\xe2\x80\x9d FY 2010 Budget Submission at 197, as Presidents have done with similar requirements in the past, see, e.g., Statement\non Signing the Military Construction Appropriations Act, Fiscal Year\n88\n\n\x0cStatutory Mandate to Propose Legislation in Response to Medicare Funding Warning\n\n1989, 2 Pub. Papers of Pres. Ronald Reagan at 1230 (1988\xe2\x80\x9389) (explaining that provisions purporting to \xe2\x80\x9ccommand the President\xe2\x80\x9d to recommend\nlegislation \xe2\x80\x9chave been consistently treated as advisory, not mandatory\xe2\x80\x9d).\nIV.\nFor the foregoing reasons, we conclude that section 802 of the Medicare Modernization Act contravenes the Recommendations Clause and\nmay be treated as advisory and non-binding.\nKARL R. THOMPSON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n89\n\n\x0c'