Tag Archives: constitution

The State of the State of the Union Address

“When Joe Biden gives his first address to Congress, it will be the first time in US history that both seats directly behind the president will be filled by women.”
“When Joe Biden gives his first address to Congress, it will be the first time in US history that both seats directly behind the president will be filled by women.”
So apparently one of the straws that some QAnon followers are grasping at now in their delusion that somehow Donald is still secretly president and the Biden presidency is some fifth-dimensional chess ruse is that Biden didn’t deliver a State of the Union address by February 20. People grasping at this straw are under the mistaken impression that the Constitution demands that the address be given no later than that date each year. I suppose we ought to ignore these ignorant theories, but since debunking this one allows me to be pedantic, talk about the Constitution, and talk about history—I can’t just let it go.

Let’s begin with what the Constitution says on the topic. It’s nice and short: “The President shall from time to time give to Congress information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient.” That’s it. There is no other mention of the term State of the Union in the Constitution. There are several things to note about this. First, it doesn’t specify any date, merely that he will do this “from time to time.” So the President can deliver the State of the Union as often or as seldom as he or she chooses. There is no requirement that it must take place before February 20 or any other date.

Second, the Constitution does not call it either a speech or an address, just that the President shall give Congress information about the State of the Union and recommend measures that the President thinks ought to be enacted. George Washington, our first President, started the tradition of delivering a speech to a joint session of Congress. John Adams, who had been Washington’s V.P. and became our second President also delivered the State of the Union as speeches. But Thomas Jefferson, our third President, thought that the spectacle of the President arriving at Congress and so forth was too kingly. So he chose to deliver it in writing. For the next 112 years, every President followed Jefferson’s model of sending a written report on the State of the Union and recommending laws that Congress should consider enacting.

In 1913 Woodrow Wilson became the first President since Adams to deliver the State of the Union as a speech before a joint session of Congress rather than as a written report. Calvin Coolidge’s address in 1923 was the first that was broadcast on radio (prior to that, the public had to read about the message to Congress in newspapers).

Another fun fact: even though that phrase “State of the Union” is right there in the Constitution, the message wasn’t called by that name until after President Franklin Roosevelt became the first President to include the phrase in the speech itself. Before then it was called either “The President’s Message to Congress” or “The Annual Message.” And that latter name continued to be the official name used in the Joint Resolution that Congress passed inviting the President to address Congress. The 1947 Joint Resolution was the first time that the event was officially referred to as the State of the Union Address. President Harry Truman’s 1947 State of the Union Address was also the first one to be broadcast on television.

One other important detail: the President is never invited to deliver the State of the Union Address in the first year of his or her term. They usually are invited to address a Joint Session in February shortly after being inaugurated, but that speech is not officially called a State of the Union Address.

And, because of the doctrine of the Separation of Powers (and the Founder’s notion that it is Congress that runs the government—not the President), the invitation to make the address must come from Congress, and it is Congress who determines the date of the address. On the other hand, the President can choose to simply send his or her message in writing, instead.

The fact that it didn’t happen by a particular date in February has absolutely no legal meaning, at all. I don’t know what plans, if any, are being discussed about a possible speech, but it seems to me unlikely we would have a typical Presidential Address to a Joint Session before next year. Because even though a whole lot of government officials have received at least one dose of Covid vaccine, it just does not seem like a good idea to cram the entire House, Senate, Supreme Court, most of the Cabinet, and a host of the usual family and dignitaries into a single room while we’re still in the middle of a deadly pandemic.

The President Hasn’t Actually Been Elected, Yet


Technically, the President (and the Vice-President) are not elected until the electors for each state meet in the capital of said state and each cast one vote for President and one for Vice-President. Each state has a number of electors equal to the total of their representatives in the lower house of Congress plus their Senators. This means that the states with lower populations actually have a disproportionately greater say in the outcome of the Presidential election because even states that don’t have enough population to get more than one Representative have two Senators. We can argue later about why the Founding Fathers set up this system1, but it’s the system we have.

And this is how we’re in a spot where one candidate has received more than 2 million more votes than the one that everyone is calling the winner.

So, on December 19 the electors meet, and under the Constitution can technically cast their votes for just about anyone. Many states levy fines against electors who do not cast their votes for the candidate who won the most votes in that state, but 33 do not. And that’s what this movement is about. And it’s not just about signing a petition. There’s more: 16 DAYS LEFT: AN ACTION PLAN TO STOP DONALD TRUMP.

I don’t have a lot of hope for it, to be honest. Each campaign that has a candidate on a state ballot submits its list of electors, and the electors already pledged to one candidate or the other are the only ones who meet to cast their votes. This is why the recount lawsuits were our best2 shot at stopping the orange narcissist and the band of neo-Nazis that he is putting in charge from coming to power. If a recount in a state showed that a different candidate had won, then a different set of electors would meet in that state’s capitol.

So, if you participate in the letter writing campaign, understand that we’re asking people who committed to vote for the Bratman to, instead, vote for the candidate that most of them loathe3. And know that one of the Texas electors is so angry at people contacting him that he tried to get the Texas Attorney General to file charges4 against the first many people who did so.

Still, even if all we accomplish is get a few more people to understand exactly why the Electoral College must go6, this effort will have been worth it.

1. Two reasons:

  • they were extremely fond of legislative bodies which they believed were more thoughtful than ordinary voters,
  • the slave states had lower population densities than the non-slave states at the time and liked a system that gave them some leverage to get the northern states from ending slavery by a popular vote.

2. And we knew it was a slim chance, but…

3. Decades of demonization by Fox “news” and white nationalists et al will do that.

4. I don’t know what crime he thought they committed. And here’s the thing: technically, being an elector means that you are, for at least a brief time, a government official. That means petitioning you is a right that we are all guaranteed under the First Amendment of the Constitution. The same one these manbabies are always citing when they want to call discrimination “religious freedom.”5

5. And when I said in the first footnote that the Founding Fathers were fond of legislative bodies, one of the things they envisioned was citizens being able to contact the electors and say, “I know the vote went one way earlier, but we have more information now…”

6. Previous times that the candidate who lost the popular vote won the elector college vote have all resulted in disastrous presidents. Just sayin’!