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SOTU and Shutdown — Options for January 29

On January 30, 2018, President Trump delivered a State of the Union message that was extremely well received by the American people whatever their party affiliation, and very poorly received by the Democrat members of the Senate and House.

How well was it received by the people? It was the highest-rated presidential address in the history of cable news. A CBS instant poll showed: 97% of Republicans liked it; 72% of independents; and 43% of Democrats. 80% stated they believed the President was trying to unite the country rather than divide it.

When the TV cameras panned the audience, the Democrats, as Wayne Allyn Root observed in his report, “The Night the Democratic Party Committed Political Suicide,” “frowned, grimaced, groaned and looked sick to their stomachs” when they heard the President report on huge job creation over the year, jobs in manufacturing, jobs in construction, lowest employment ever among African Americans, lowest employment ever among Hispanics, lowest employment in 18 years for women. “Democrats were outed as the party that is rooting for America’s failure.” The Democrats were so anti-Trump, they evidenced no sympathy for a couple in the gallery who were victims of MS-13 gang violence — the murder of an American in their own country by illegal aliens. (For all their talk, Democrats don’t care about “safe spaces.”)

It is little wonder, then, that, as soon as President Trump concluded his speech, the Democrats fell over themselves as they ran for the exits. And it is little wonder that newly elected Speaker of the House Nancy Pelosi wanted to find a reason for Democrats to avoid having to listen to President Trump deliver another State of the Union this year, on January 29, when he would list his achievements, one after another for an hour, during his second year in office. If I can adapt a line from Col. Nathan R. Jessup in the movie A Few Good Men (1992) and direct it to the Democrats: “You can’t handle the truth!”

So, on January 16, Speaker Pelosi wrote the President asking that he postpone the speech or submit it in writing on the pretext that the current partial federal government shutdown constricted the ability of the Congress to provide the needed security for a visit by the President. Obviously, she has no plans to have the House pass a resolution, along with the Senate, to invite him to address a Joint Session of Congress.

Some context: The U.S. Constitution, in Article II, Section 3, requires that the President“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…” President George Washington made these annual messages. Almost always since FDR’s first term, the message has been delivered in person in a speech and in January.

So, what to do? Yes, the President could, as Speaker Pelosi suggested, reschedule his speech sine dine, that is, to an unspecified date. Yes, the President could, as the Speaker suggested, send his message in writing. There are additional options.

Speak from the Oval Office

Of course, the President could deliver his State of the Union message from the Oval Office of the White House on national television. But recall that the constitutional requirement is that he deliver the message to the Congress. That members of Congress can watch him on TV is simply not the same thing. If it were the same thing, a president could give this message to Congress from an in-flight Air Force One, or from an American naval ship, or from California, or from Mar-a-Lago, or… from Mexico. This would evidence a lack of respect for Congress, and consequently a lack of respect for the Constitution and the American people.

Speak at the White House, Not from the Oval Office

In this option, the President would not speak in the small Oval Office, but would invite the entire Congress to assemble inside, or on the grounds of, the White House. The East Room is the largest room in the White House, at 80’ x 37’. If the event were held outdoors, in the winter, it would be somewhat difficult to arrange a heated venue for 535 members, but it could be done.

The ceremonial aspects, the drama, of the President addressing Congress in the House chamber would be missing, as would the symbolic effect of the President going to the home of Congress Assembled where the President is the guest, the invitee, rather than the other way around. It would be an unwitting consequence of Speaker Pelosi’s power play that she would weaken the Congress and render the presidency even more important than it already is.

Visit the House Chamber Without an Invitation

On January 16, Jack Herrera in the Pacific Standard wondered what would happen if President Trump arrived at the House Chamber on January 29 (or some other day) with the intent of speaking in the House chamber. Herrera asserted that the President can enter the U.S. Capitol without an invitation. He also asserted that the House rules would specifically allow him, as President, to enter the floor of the House. (See Rule IV(2)(a)(3) of the rules of the previous Congress.) If the President, a non-Member of Congress, were to attempt to speak from the floor (much less mount the podium), he could be removed by the Sergeant-at-Arms. But would he?

I can add that Rule IV(6)(a) provides: “The Speaker shall set aside a portion of the west gallery for the use of the President, the members of the Cabinet, justices of the Supreme Court, foreign ministers and suites, and the members of their respective families.” Again, if the President, a non-Member of Congress, were to attempt to speak from the gallery, he could be removed by the Sergeant-at-Arms. But would he?

Speak on the Steps of the U.S. Capitol

The precedent for a President speaking on the steps of the U.S. Capitol is that, on Inauguration Day, the just-inaugurated President does so. (Recall the famous picture of Lincoln’s Inaugural speech in which his assassin also appears.) The Architect of the Capitol makes these arrangements (see Architect of the Capitol, “Inauguration at the U.S. Capitol.”). The President could not assume that Speaker Pelosi would facilitate his appearance. Yet, nothing would be required of the House. White House personnel could set up a canopy and bring chairs, or Members of Congress could stand or bring their own chairs.

Speak in the U.S. Senate Chamber

In an interview on January 17, Senator Rand Paul suggested that the Senate could invite President Trump to deliver the State of the Union in the Senate chamber. It would be a bit cramped but could accommodate, either on the floor or in the gallery, the Members of the House who would like to attend. (While the House’s website has a page listing all House-only receptions of guests, foreign or domestic dignitaries, I could not locate a similar list for the Senate.)

There is no doubt that the Senate would welcome President Trump and pass a bipartisan resolution to invite him, but you may be interested in several pertinent rules of the Senate. Standing Rule 19.8 provides that former presidents “shall be entitled to address the Senate upon appropriate notice to the Presiding Officer who shall thereupon make the necessary arrangements.” Rule 23.1 specifies that the President shall be admitted to the floor while in session. Rule 29.1 states: “When the President of the United States shall meet the Senate in the Senate Chamber for the consideration of Executive business, he shall have a seat on the right of the Presiding Officer.”

Convene the House

I quoted above only part of Article II, Section 3, of the Constitution. That Section further provides that the President “may, on extraordinary Occasions, convene both Houses, or either of them.” The President has convened both chambers 27 times. Are we now experiencing an “extraordinary Occasion”? Yes, on two bases.

First, there is no gainsaying that we are in the middle of the longest government (although partial) shutdown in U.S. History. It started on December 22 and made history on the 22nd day. Speaker Pelosi highlighted the extraordinary nature of this shutdown when she wrote President Trump about the reasons for seeking a change in the State of the Union schedule.

Second, never before have thousands of people massed outside our borders and traveled (by “caravan”) to our border, not with the intent of presenting themselves at lawful ports of entry and making claims of asylum, but with the intent of entering unlawfully at a time and place of their choosing. Indeed, in East Bay Sanctuary Covenant v. Trump, the plaintiffs argued against the President’s proclamation and the rule promulgated by the Attorney General and the Department of Homeland Security requiring that asylum be granted only to those who enter at designated ports of entry.

The President could convene the House, whenever it goes out of session, and ask that it pass an appropriations bill that would fund that part of the government which is currently without funds, and appropriate money for border security. Perhaps he could require the House to remain in session on weekends and holidays. Unfortunately, he cannot require legislation or a vote, and the House would be free to adjourn. But the point would be made. When Truman did it in 1948, and the Congress failed to act on his agenda, he campaigned, and won, against what he called “the do-nothing Congress.” (Andrew Glass, “President Truman Convenes Special Session of Congress, July 26, 1948,” Politico, July 26, 2007)

To add to his dramatic point in convening the House, President Trump might convene the House away from the Capitol, outside the Beltway. I would suggest some place either on the southern border (for example, at a detention facility), or one of the numerous places in the interior of the country where the drugs, human trafficking, gangs, etc., from illegal cross-border activity has had a large effect. Maybe near a state jail. Maybe a drug rehab facility.

The Senate’s Rule 29.1 provides for a President convening the Senate outside the Capitol — at least for an Executive Session: “When the Senate shall be convened by the President of the United States to any other place, the Presiding Officer of the Senate and the Senators shall attend at the place appointed, with the necessary officers of the Senate.” I have not yet found a similar House rule.

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