Application of The Recommendations Clause To Section 802 of The Medicare Prescription Drug, Improvement, and Modernization Act of 2003

• Decision Date: 25 August 2016
• Docket Number: 16-5
• Citation: 40 Op. O.L.C. 1
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Application of the Recommendations Clause to Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003

40 Op. O.L.C. 1

Application of the Recommendations Clause to Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003

No. 16-5

United States Department of Justice

August 25, 2016

KARL R. THOMPSON Principal Deputy Assistant Attorney General Office of Legal Counsel

Application of The Recommendations Clause To Section 802 of The Medicare Prescription Drug Improvement, and Modernization Act of 2003

The Recommendations Clause bars Congress from enacting laws that purport to prevent the President from recommending legislation that he judges “necessary and expedient.”

The Recommendations Clause bars Congress from enacting laws that purport to require the President to recommend legislation even if he does not judge it “necessary and expedient.”

Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 contravenes the Recommendations Clause and may be treated as advisory and non-binding.

MEMORANDUM OPINION FOR THE GENERAL COUNSEL OFFICE OF MANAGEMENT AND BUDGET

Section 802 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat 2066 (“Medicare Modernization Act”), provides that “[i]f there is a medicare funding warning under section 801(a)(2) of the [Medicare Modernization Act] made in a year, the President shall submit to Congress . . . proposed legislation to respond to such warning.” Id. § 802(a) (codified at 31 U.S.C. § 1105(h)(1)). We previously advised you that section 802 conflicts with the President’s duty under the Recommendations Clause to “recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient, ” U.S. Const. art. II, § 3, and that the President may therefore continue to treat this provision as “advisory and not binding, ” e.g., Office of Management and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2010 at 197 (2009) (“FY 2010 Budget Submission”). This memorandum memorializes and further explains the basis for our advice.

In Part I, we describe the relevant provisions of the Medicare Modernization Act and summarize the Executive Branch’s statements regarding section 802. In Part II, we discuss the scope of the Recommendations Clause. As we explain, while the Clause expressly states only that the President has the authority and duty to recommend to Congress those measures that he judges necessary and expedient, our Office has long maintained that the Clause—like other provisions of Article II that assign responsibilities to the President—implicitly bars Congress from enacting legislation that would prevent the President from exercising, or that would usurp, that authority and duty. Accordingly, as we explain in Part II.A, we believe the Clause bars Congress from enacting laws that purport to prevent the President from recommending legislation that he judges “necessary and expedient.” And as we explain in Part II.B, we believe the Clause also bars Congress from enacting laws that purport to require the President to recommend legislation even if he does not judge it “necessary and expedient.” In Part III, we apply this interpretation of the [ 2]

Recommendations Clause to section 802, explaining that because it purports to direct the President to “submit to Congress . . . proposed legislation to respond to [a medicare funding] warning” without regard to whether the President considers such legislation “necessary and expedient, ” it conflicts with the Recommendations Clause.

I.

The Medicare Modernization Act, enacted in 2003, made a variety of reforms 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 Act provides that if Medicare trustees determine in two consecutive annual reports that the portion of total Medicare expenses funded from general revenues, as opposed to dedicated Medicare financing sources, is projected to exceed 45 percent for the fiscal year in which the report is submitted or for any of the succeeding six fiscal years, that determination “shall be treated as a medicare funding warning.” Id. § 801(a)(2); see Id. § 801(a)(1)(B), (c)(1)–(4). Section 802(a) added a new subsection (h) to 31 U.S.C. § 1105, the statute governing the President’s annual budget submission. That new subsection provides that “[i]f there is a medicare funding warning under section 801(a)(2) of the [Medicare Modernization Act] made in a year, the President shall submit to Congress, within the 15-day period beginning on the date of the budget submission to Congress under [31 U.S.C. § 1105(a)] for the succeeding year, proposed legislation to respond to such warning.” 31 U.S.C. § 1105(h)(1); see also Medicare Modernization Act § 802(b) (stating that “[i]t is the sense of Congress” that “legislation submitted pursuant to section 1105(h) of title 31, United States Code, in a year should be designed to eliminate excess general revenue medicare funding . . . for the 7-fiscal-year period that begins in such year”). Sections 803 and 804 provide that, once the President submits a proposal pursuant to section 802, members of each house of Congress “shall introduce such proposal (by request), the title of which [shall be] ‘A bill to respond to a medicare funding warning.’” Medicare Modernization Act §§ 803(a)(1), 804(a)(1). “Such bill” must then be referred to the appropriate committees for consideration. Id. §§ 803(a)(1)–(2), 804(a)(1)–(2); see also Id. §§ 803(b)–(d), 804(b)–(e) (setting forth certain expedited procedures for consideration of bills to respond to a medicare funding warning).

Upon signing the Medicare Modernization Act in 2003, President Bush stated that the Executive Branch would construe section 802 “in a manner consistent with the President’s constitutional authority . . . to recommend for the consideration of the Congress such measures as the President judges necessary and expedient.” Statement on Signing the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Dec. 8, 2003), 2 Pub. Papers of Pres. George W. Bush 1698, 1698 (2003). President Bush later responded to a medicare funding warning by submitting draft legislation to Congress. See H.R. 5480, 110th Cong. (2008). In response to a subsequent medicare funding warning, President Obama’s first budget [ 3] submission stated that “[i]n accordance with the Recommendations Clause of the Constitution, the President considers th[e] requirement [in section 802] to be advisory and not binding, ” but that “[n]evertheless, the President has put forth Budget proposals that would . . . address the warning conditions.” FY 2010 Budget Submission at 197–98. President Obama’s subsequent budget submissions have included similar language.^[1]

II.

The Recommendations Clause provides that the President “shall from time to time . . . recommend to [Congress’s] Consideration such Measures as he shall judge necessary and expedient.” U.S. Const. art. II, § 3. Although the express terms of the Clause state only that the President has the duty and the authority to recommend measures he judges necessary and expedient, this Office has long maintained that the Clause implicitly prohibits Congress from enacting legislation that would prevent the President from exercising, or would usurp, that duty and authority. Accordingly, we have maintained for over half a century that Congress may not enact statutes, commonly known as “muzzling laws, ” that purport to prevent the President from recommending legislation he thinks necessary and expedient. See, e.g., Constitutionality of a Joint Resolution Requiring the President to Propose a Balanced Budget Every Year, 1 Op. O.L.C. Supp. 161, 161 (Aug. 16, 1955) (“ Constitutionality of Joint Resolution ”) (“It appears too clear for serious question that a legislative fiat which seeks to remove the President’s unlimited judgment in communicating with the Congress is in violation of the [Recommendations Clause].”); Lobbying by Executive Branch Personnel, 1 Op. O.L.C. Supp. 240, 246 (Oct. 10, 1961) (“[A] literal interpretation of 18 U.S.C. § 1913 which would prevent the President or his subordinates from formally or informally presenting his or his administration’s views to the Congress . . . as to the need for new legislation or the wisdom of existing legislation . . . would raise serious doubts as to the constitutionality of the statute.”); Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion, 23 Op. O.L.C. 126, 147 (1999) (“ Authority to Enter Settlements ”) (stating that “Congress . . . is powerless to restrict the President’s discretionary exercise of” his “power to make recommendations to Congress”). And for more than thirty years, we have also taken the position that Congress may not enact statutes that purport to require the President to recommend legislation even if he does not consider it necessary and expedient. [ 4]

See, e.g., Memorandum for Michael J. Horowitz, Counsel to the Director and General Counsel, Office of Management and Budget, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Chicago School Case at 18 (Aug. 9, 1984) (“ Chicago School Case ”) (concluding that “Art. II, § 3 insulates the President from any compulsion to submit legislative proposals that he does not judge to be necessary or expedient”); Constitutional Issues Raised by Commerce, Justice, and State Appropriations Bill, 25 Op. O.L.C. 279, 283 (2001) (“Under the Recommendations Clause, Congress cannot compel the President to submit legislative proposals to Congress.”).

We believe these longstanding views are sound. First, as we explain in...