Application of the Recommendations Clause to Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003
Background
- Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (codified at 31 U.S.C. § 1105(h)(1)) requires the President, upon a statutorily defined “medicare funding warning,” to submit proposed legislation within 15 days of the annual budget submission.
- Related provisions (sections 803–804) direct Congress to introduce and refer the President’s proposed bill and set expedited procedures for its consideration.
- Presidents Bush and Obama both treated §802 as advisory: Bush pledged to construe it consistently with the Recommendations Clause; Obama’s budgets characterized the provision as advisory and not binding while still proposing measures to address warnings.
- The Office of Legal Counsel (OLC) reviewed §802 against the Recommendations Clause, U.S. Const. art. II, § 3, which states the President “shall from time to time… recommend… such Measures as he shall judge necessary and expedient.”
- OLC concluded (a) the Recommendations Clause prohibits Congress from muzzling the President (forbidding him to recommend laws he judges necessary and expedient) and (b) it also bars Congress from compelling the President to recommend legislation he does not judge necessary and expedient; applying these principles, OLC determined §802 conflicts with the Clause and may be treated as advisory and nonbinding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. May Congress enact “muzzling” laws that prevent the President from recommending legislation he deems necessary and expedient? | Congress may regulate the form or timing of budget submissions and related communications. | The Recommendations Clause imposes an executive duty and exclusive presidential discretion to recommend measures; Congress may not bar the President from making such recommendations. | OLC: Such muzzling statutes violate the Recommendations Clause. |
| 2. May Congress require the President to recommend legislation even if he does not judge it "necessary and expedient"? | Statutory mandates that direct submissions (e.g., budget procedures) are permissible legislative instructions or procedural requirements. | The Clause vests the judgment of necessity and expediency in the President alone; Congress cannot usurp that judgment by compelling recommendations. | OLC: Congress cannot constitutionally compel the President to recommend measures he does not judge necessary and expedient. |
| 3. Does §802 of the Medicare Modernization Act violate the Recommendations Clause? | §802 is a valid statutory requirement that triggers a presidential submission of proposed legislation upon a medicare funding warning. | §802 compels submission of proposed legislation regardless of presidential judgment and thus usurps the President’s exclusive constitutional judgment. | OLC: §802 contravenes the Recommendations Clause and may be treated as advisory and non‑binding. |
Key Cases Cited
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (recognizing that statutes are unlawful when they prevent the Executive from accomplishing constitutionally assigned functions)
- Schick v. Reed, 419 U.S. 256 (noting constitutional powers that flow from the Constitution alone cannot be diminished by Congress)
- Zivotofsky v. Kerry, 135 S. Ct. 2076 (explaining Congress may not command the President to state a diplomatic recognition position inconsistent with his own)
- Clinton v. City of New York, 524 U.S. 417 (discussing Article II features that enable the President to propose and point out remedies to public problems)
- McPherson v. Blacker, 146 U.S. 1 (construing constitutional language that vests selection authority in a specified actor as exclusive)
- Cary v. Curtis, 44 U.S. (3 How.) 236 (construing vesting language as conferring sole power to the designated branch or actor)
- Wooley v. Maynard, 430 U.S. 705 (noting courts have protected the President’s exclusive expressive functions from compelled contradictory statements)