It does read, “He [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” (emphasis added). So it’s actually unconstitutional for the Justices to show up. Shame on them! They should go back to Article III, where they belong. Or, wait, maybe it’s the President who’s at fault for giving the information to unauthorized persons?
Of course that’s actually a vast overstatement: That the President shall give the Congress information about the state of the union doesn’t mean that he can’t give it to others at the same time. The matter here (such as it is) is of tradition, not of constitutional text. Still, if the Justices want a reason to stay away, the Congress Provision of the State of the Union Clause should serve as an adequate excuse.
D.O. says:
Are we commoners allowed to watch? And I am not even a US citizen!
March 9, 2010, 9:32 pmJ. Aldridge says:
Who invites them anyway, the president?
March 9, 2010, 9:57 pmptt says:
Why stay away if you can go and then pretend you didn’t know what to expect?
Maybe next year, Roberts will stay home. I doubt it.
March 9, 2010, 10:02 pmCornellian says:
I think Supreme Court justices should stay away from the SotU even though there’s no constitutional impediment to their attending.
If the purpose of the SotU is to recommend action to Congress, I don’t see why the Supreme Court justices have any need to be present for that.
March 9, 2010, 10:31 pmPaul McKaskle says:
This is one of the few positive duties imposed by the Constitution (a decennial census is another). This is unlike many European constitutions or equivalents (including the European Convention on Human Rights) which either say or have been interpreted as requiring the state to undertake various kinds of activities such as protection against environmental harm, medical care and a whole host of other positive actions even in the absence of legislation.
March 9, 2010, 10:51 pmBobC says:
I just want to go back to the days where the president submits a letter and then we are done with it. Quit interrupting prime time with something that isn’t the actual state of the union (I didn’t see one pie chart).
March 9, 2010, 11:18 pmAlan says:
Very interesting and funny. Oddly, the post makes sense–it does indeed look unconstitutional. Expressio unius est exclusio alterius.
Only, I’d say shame on the President, not shame on the Justices. The way the sentence is written, it looks like the President is the one who’s violating the Constitution, by giving the speech to anyone other than Congress. If anyone other than a member of Congress walks in, then by giving the speech the President is committing an ultra vires act–giving the address to non-Congress persons.
March 9, 2010, 11:35 pmPerseus says:
Agreed. Neither justices nor common citizens need be present (or watching), which is why a written message addressed to Congress is arguably the best way to do it (no vulgar rhetorical grandstanding required).
March 10, 2010, 12:00 amNIck056 says:
Alan,
I don’t believe expressio unius est exclusio alterius necessarily applies regarding only one named element. cf. Chevron v. Echazabal.
March 10, 2010, 12:19 amMaryG says:
” Still, if the Justices want a reason to stay away, the Congress Provision of the State of the Union Clause should serve as an adequate excuse.”
Yes, because the old “Sorry, can’t make it that night; I’m staying home washing my hair” excuse really won’t fly with that aging, thinning group, I guess.
I predict at least two (more) of them will choose to be absent next year, maybe even CJ Roberts. By going on record with his discomfort with the proceedings, and as a way of dignified protest to this year’s Alito kerfluffle, he should just give his polite regrets and stay home. Washing, drying and styling his hair even, if he likes. Nobody’s business the reason for staying away, really.
March 10, 2010, 12:21 amCornellian says:
Yes, because the old “Sorry, can’t make it that night; I’m staying home washing my hair” excuse really won’t fly
I’d probably go with something like “I’ll show up at the SotU when the President shows up at my ceremony opening the Court’s fall term.”
March 10, 2010, 1:43 amOrenWithAnE says:
But that would clearly be the Executive trying to intimidate the Court!
March 10, 2010, 2:13 amkazinksi says:
The only rational for attending if you didn’t have to is to get face time on national TV. I think Scalia has it right, it is a waste of time.
I didn’t watch Bush’s SOTU’s (after about ’05) and I won’t watch Obama’s and I won’t watch whatever asshat’s in office after that.
March 10, 2010, 2:16 amandy says:
“I like to eat pizza and hotdogs.” God forbid anyone offer me a hamburger!
“I like baseball.” I must hate football and everything else!
“I read novels.” I guess I don’t read any newspapers!
I don’t think the expressio canon should be applied so strictly…it surely is not applied that way in ordinary language…
March 10, 2010, 4:33 amSara says:
Who invites them anyway, the president?
I would guess the speaker, since they’re given floor privileges.
March 10, 2010, 7:31 amJustice Roberts slaat terug says:
[...] conflicten worden herleid, levert Eugene Volokh op zijn blog The Volokh Conspiracy meteen een grondwettelijk argument. In de Grondwet staat dat de president ’shall from time to time give to the Congress [...]
March 10, 2010, 8:02 amAlan says:
I was only kidding, dingdang it!
March 10, 2010, 9:02 amTomH says:
conflicten worden herleid – I think not.
March 10, 2010, 9:34 amPaul says:
If there’s something unconstitutional going on, it might come from elsewhere in the article. Listening to this year’s speech, I was struck by how little time was actually spent discussing the state of the Union. Nor, indeed, do I remember a lot of recommending; unless my memory fails, it was a lot more “we will” than “you should.” Not that this is unique to President Obama by any means, but the speech seems to me much less about fulfilling its constitutional purpose than about political theater.
That’s only really to be expected though. In an age of instant communication and mass media, I’d say the Constitution’s idea of the State of the Union is obsolete. It could be amended away without losing anything, except that it’s so trivial there’s little reason to go through the process.
March 10, 2010, 9:41 amShag from Brookline says:
I wonder why so many Justices wear their judicial robes when attending SOTU speeches. Mr. Dooley said the Justices follow the “illiction” returns and that involves the SOTU, suggesting why some Justices attend. Perhaps they wear their robes to distinguish themselves from members of Congress and of the Administration. I wonder which Justices attended George W. Bush’s first SOTUS speech. Of course they were following their own “illiction” of Bush/Cheney. But let’s not speak “ill” of the robed Justices, except in 5/4 time.
March 10, 2010, 9:48 amrarango says:
Does anyone think the SOTU is anything other than a partisan exercise? Get rid of the monstrosity, mail a letter to congress and call it good.
March 10, 2010, 10:19 amDon Miller says:
I echo these sentiments. There is no Constitutional Requirement that this State of the Union Message be delivered in the form of a speech.
The same argument against the Justices attended could also be made against the public airing of the speech too.
March 10, 2010, 10:23 amRD says:
Well. Between the time Washington stormed out of the Senate chamber when the senators actually wanted to advise before consenting to Jay’s Treaty, and when Woodrow Wilson showed up to give a speech on the state of the union, no president set foot in the chambers of Congress to give such a speech, and it was quite the scandal when Wilson did it. Demeaning to the Office of the President and all that. There certainly is no Constitutional requirement that the President stage such political theater, and absolutely no reason for the justices, foreign diplomats, or anyone other than members of Congress to show up and listen.
March 10, 2010, 10:36 amDavid Mayer says:
I think a good case can be made — under a Jeffersonian theory of the Constitution (with an emphasis on separation of powers) — that the modern (post-Wilson) State of the Union address is, in its entirety, unconstitutional. And I made this case in my blog essay, “The Unconstitutional State of the Union Address,” way back in January 2004. See:
March 10, 2010, 11:44 amhttp://users.law.capital.edu/dmayer/Blog/blogIndex.asp?entry=20040120.asp
Texas Lawyer says:
Just curious, fellow comment leavers: why should the President, or the Speaker, or anyone else, give a rat’s hind-end whether you would prefer a letter over “political grandstanding?”
I also question why Jeffersonian preferences become synonymous with the constitution in your essay, Prof. Mayer. If I correctly understood your narrative, Washington and Adams both gave live speeches. Were those “unconstitutional” or merely unseemly, in your view?
In my own idiosyncratic judgment, like matters of decorum or preference present more discretion for decision-makers than matters of constitutionality. If we show that the Justices’ attendance at SOTU is not an unbroken tradition (in part because there was not always a live SOTU speech), then it seems to be sort of up to the individual Justices whether they want to attend. I think I would be less inclined to attend if the President would use the speech to criticize Court decisions.
March 10, 2010, 12:25 pmSCOTUSblog » Wednesday round-up says:
[...] USA Today, David Savage at the L.A. Times, and Jake Tapper at ABC News have the story in full, and Eugene Volokh examines whether the Constitution’s State of the Union Clause might offer the Justices an [...]
March 10, 2010, 12:50 pmSyd Henderson says:
RD: Washington and John Adams did give their State of the Union messages in person. It was Jefferson who discontinued the practice. I’ve seen two explanations, (1) He thought it was too much like the Speech from the Throne, hence not suitable for a democracy, or (2) despite his writing talent Jefferson wasn’t a good public speaker.
March 10, 2010, 1:44 pmAnonsters says:
All those advocating that the SOTU be given in a written message to Congress, or that so-and-so group of people ought not to attend, and so on, show by their very advocacy of those positions that they simply do not understand the culture of Washington, D.C.
March 10, 2010, 2:31 pmMLS says:
What Mr. Obama did at the SOTU was a cheap shot, and all the more so given that out of the mouths of politicos in public comes “reduce special interest influence” and in private the first thing to shoot out is their hands for contributions.
March 10, 2010, 3:01 pmrarango says:
Anonsters: as one who advocates the submission of a letter precisely how is it that I fail to understand Washington DC political culture? and precisely why is your rather absurd assertion to be taken as holy writ?
Please explicate. And provide writte evidence that you do in fact understand these nuances and are published in peer reviewed journals. Otherwise sir I will simply think you as full of shit.
March 10, 2010, 4:09 pmAnonsters says:
I live in D.C., so I’m kind of surrounded by its culture. It matters to people whether you get invited to certain things. It matters to people where you watch the SOTU. It matters to people who you watch it with. It matters to people that you are on certain pedestals. It matters to people that you get knocked off your pedestals. It’s an incredibly petty place. Dare I say, a cesspool? I know people don’t like to hear that about the seat of their government. I love the city, personally. I just hate the culture.
By the way, please provide me with citations to your publications in peer-reviewed journals displaying evidence from your own personal research establishing that publication in peer-reviewed journals gives you insight into the culture, political or otherwise, of a city. Stupid request, ain’t it?
March 10, 2010, 4:16 pmPerseus says:
Precisely because we know that DC is a status-seeking cesspool is a reason for having the SOTU be given in a written message to Congress.
March 10, 2010, 4:25 pmAnonsters says:
Possibly. I was just saying why it’s not a terribly realistic option. :)
March 10, 2010, 4:27 pmHerb Spencer says:
OK, folks, let’s get a little factual background going here, OK? (Surely there’s a history (cf. “American Studies” or PoliSci) major among you!) How have SOTUs been delivered over the last 200+ years, and have there been patterns of delivery. Spans of written submissions broken by live ones, or vice-versa? For how long has the SOTU been delivered live? Am I correct in thinking that it dates from the emergence of radio in the 1920s? I ask because I’d like to know exactly how long this “tradition” has been with us. Or, in constitutional terms, for how long has it been “clearly established?”
March 10, 2010, 4:32 pmVirginian says:
According to Biden, they have been televised since 1812.
March 10, 2010, 5:05 pmAaron Armitage says:
Really? I read them wanting to change things, not trying to keep them the same under some mistaken impression of current practice, which would imply that they understand perfectly well. They just don’t like it, and neither, taking Washington culture as a whole, do the American people.
March 10, 2010, 5:24 pmA. Dawson says:
SCOTUS manages to do intellectual gymnastics any which way it pleases.
Even if the Constitution said “the Justices of the Supreme Court *SHALL* attend the President’s State of the Union speeches,” the Court would find one way or another not to attend. Under such a scenario they might claim that under procedural due process catching the speech on Youtube via their iPod’s would be sufficient.
March 10, 2010, 5:32 pmtde says:
perhaps Roberts should focus on trying to do his own job – simple things like being able to correctly administer the oath of office – before he worries about what the other branches of government are doing.
March 10, 2010, 6:19 pmPerseus says:
Maybe not, though presidents like to promise that they will change the corrupt culture of Washington. In the case of President Obama, however, it’s especially unlikely that he would consider returning to the written address because one of his strengths as a politician is his oratory.
March 10, 2010, 6:39 pmAvibob says:
With all deference to the Supreme Court and to the Chief Justice, there is nothing in the Constitution requiring that any member of the Supreme Court attend. With reasonable deference to Mr. Volokh, I find it extremely curious that he would admit that to say that it is unconstitutional for the Justices to attend is an overstatement and yet suggest that the text of the clause (and presumably the “overstated conclusion”) would give the Justices sufficient basis for declining to attend. Isn’t this shades of the ultra strict constructionist perspective that the existence of the United States Air Force is unconstitutional because there is no reference to that branch of the armed forces in the Constitution?
March 10, 2010, 8:29 pmJoey says:
My understanding is that the case was decided on the basis of the First Amendment. That’s a bit more than a “loophole” that Congress can close by some sort of legislation, isn’t it? Or are we at the point now where it is the Executive Branch, along with Congress that defines the meaning of the First Amendment – instead of the Supreme Court?
The point here is not whether the case was rightly or wrongly decided. The point is that it was classless in the extreme, if another example of the sort of partisanship that the President was SUPPOSED to avoid, for him to subject the members of the Court to such mob humiliation – of course, led by the always leeping to her feet, Queen Nancy.
March 10, 2010, 9:36 pmalice says:
This was another of Obama’s temper tantrums. It was an embarrassing point in his presidency to talk to the Justices at a SOTU. Of course, if he could appoint more “Sotomayors” ( Yes people who are racist) he will never have a problem again.
March 10, 2010, 10:03 pmBemac says:
Sorry to come late to this, but I’ve a question I haven’t seen addressed in all the hoopla.
The Framers didn’t require the president to notify the Supreme Court of the state of the union, even though it might find such information relevant in its deliberations.
The clause requires a communication from one of the political branches to the other political branch, including recommendations that would require congressional action. At the very least, the president’s recommendations to Congress would be political matters.
Everything about the nature and the mandated content (presidents may not report much, but the speeches are still full of recommendations) implies the state of the union is a political question. Doesn’t that suggest that attendance by the justices as justices — black robes and all — is a bad constitutional idea?
Obviously, the notion that the president must limit disclosure of his report to certain individuals is absurd. And nothing in the Constitution bars the president from sending a courtesy copy of the state of the union to the court. But the best way to avoid any intemperate political grandstanding inherent in relations between the political branches is for the justices to note the absence of a role for them and to stay home.
March 15, 2010, 10:12 am