If you’ve been watching the news lately, you know about the fight between Speaker of the House Nancy Pelosi and President Donald Trump, which is only the latest in what I expect to be a long list of public spats.  This argument is over the annual State of the Union (SOTU) address and the speaker’s overseas trip.  While I’ve seen finger pointing and posturing, mostly by the mainstream gossip media like CNN, Fox, and the like, what I haven’t seen is any discussion about the constitutional requirements of the SOTU and even less about the military being used to transport the speaker.  So let’s look at what the Constitution says.

The State of the Union

He 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;

Article II, Section 3

Let’s first look at what the President is required to do under the Constitution.  The President is required to give Congress information on the state of the union.  There is no requirement for this to be done at a specific time or even annually.  There is no requirement for it to be done in person.  And there is no requirement for it to be done publicly.

A Little History

President George Washington gave a message on the state of the union to a joint session Congress, as part of his inauguration on August 30th, 1789.  Starting January 8, 1790, President Washington began the practice of giving his “Annual Message” in person, something both he and John Adams continued.  Starting on December 8th, 1801, President Thomas Jefferson simply sent written messages to the two houses of Congress every year.  Woodrow Wilson revived the practice of delivering his message in person to a joint session of Congress in 1913.  Although it became a tradition in the 20th century for the President to give an annual address to a joint session of Congress, several times written messages were sent instead.  So while it has become tradition for the President to give a publicly broadcast State of the Union Address, it is not required by the Constitution.

So, since we’re on the topic of history, the message the President is required to give is for Congress, not the country as a whole.  I am all for transparency; I believe it is good for the people of this nation to read and consider the state of our union, but that does not require a live, nationwide broadcast.  The President can simply publish his message to Congress on the White House website.  Also, since almost everything done in Congress is kept in a journal, the reading of the President’s message could be included there as well.

How the Process Works

The date and time for a joint session to receive communication from the President is determined by a House resolution, which is where this whole playground mud fight started.  Apparently, Speaker Pelosi refused to allow such a resolution to come to the floor, which is within her power under rules adopted by the House of Representatives per Article I, Section 5, Clause 2.

Each House may determine the Rules of its Proceedings…

Article I, Section 5, Clause 2

This is not the “refusal to allow the President to speak” that I’ve heard bandied about, but a legal procedural move to not call a join session.  Without the joint session, there is nobody for the President to talk to.  Could the President convene Congress under his Article II, Section 3 power?

[The President] may, on extraordinary Occasions, convene both Houses, or either of them,

Article II, Section 3

Some may say so, but somehow I don’t think a petulant Speaker of the House qualifies as an “extraordinary occasion”.

What can the President Do?

Legally, I can think of two things the President can do.  First, he can simply send a written copy of his speech to Congress.  He could include a cover letter identifying that since the House would not assemble a joint session for him to appear at, he is fulfilling his constitutional requirement this way.  Second, he can wait until the House schedules a joint session for him to appear.  There is no requirement that he give Congress his state of the union on a specific day, or even every year.  If the House wishes to wait a month or even a year, the President could wait and still be following the letter of the Constitution.  At some point though, I think the written method of transmitting his state of the union may become necessary, but there is no hard and fast timeline for that.

House Speaker’s Travel

In what appears to be a bit of payback, President Trump has denied Speaker Pelosi the use of military aircraft for a scheduled trip to Brussels and Afghanistan.  Can the President do that?  Well, he is the Commander-in-Chief of the military, so unless Congress had passed legislation requiring the military to support the overseas travel of members of Congress, then yes, he can.

To make Rules for the Government and Regulation of the land and naval Forces;

Article I, Section 8, Clause 14

A better question to ask would be why was Speaker Pelosi traveling overseas on military aircraft in the first place?  It appears she was going to visit the troops.  Congress does set the regulations for the military, and the House is primarily responsible for the collecting of taxes to pay for the military, so I can see why the Speaker might want to hear directly from the troops.  However, would flying by the military equivalent of an airliner be an efficient use of our military budget?  Is a week of travel to spend a few hours with the troops the best use of the Speaker’s time, not to mention that of her staff and its obligatory entourage?  Or was this just another perk of being a high ranking government official?  You know, like when a company sends its best sales people for a week in Hawaii and includes a couple of meetings to make it a “business trip”?  With all the discussion of how petty both the President and the Speaker are being, is anyone asking why she thought this was the best use of her time and government resources?  With all the rhetoric about the “suffering workers” who have been furloughed or are working without paychecks, maybe those at both ends of Pennsylvania Ave., who are supposed to be serving this nation, should focus on that rather than a personal and political spit-ball fight.