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What the hell is going on with the State of the Union, explained

Vox.com logo Vox.com 1/24/2019 By Emily Stewart
FILE: WASHINGTON, DC - DECEMBER 11:  U.S. President Donald Trump (R) argues about border security with House Minority Leader Nancy Pelosi (D-CA) as Vice President Mike Pence (C) sits nearby in the Oval Office on December 11, 2018 in Washington, DC.  (Photo by Mark Wilson/Getty Images) © Getty Images FILE: WASHINGTON, DC - DECEMBER 11: U.S. President Donald Trump (R) argues about border security with House Minority Leader Nancy Pelosi (D-CA) as Vice President Mike Pence (C) sits nearby in the Oval Office on December 11, 2018 in Washington, DC. (Photo by Mark Wilson/Getty Images)

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not represent the views of MSN or Microsoft.

Is the State of the Union happening?

It’s a surprisingly difficult question to answer amid a back-and-forth between President Donald Trump and House Speaker Nancy Pelosi as the partial government shutdown drags on. Trump wants to deliver his speech from the House of Representatives on January 29, as planned. Pelosi says no. And constitutionally, he can’t make her let him.

Trump can’t just demand his way into Congress to deliver the State of the Union, because the House and Senate have to pass a concurrent resolution for there to be a joint session of Congress where the event would take place. Neither chamber has taken a vote on that yet, and in a response to Trump on Wednesday, Pelosi said she doesn’t plan on it. She reiterated her point: Trump can come at another “mutually agreeable date” when the government has been opened.

Donald Trump (AP) © ASSOCIATED PRESS Donald Trump (AP)

“[The State of the Union] has been a political tool that presidents have since found useful, and legislators have had their own reasons to play along, but the Constitution does not require a State of the Union address, and if the tradition disappeared entirely, it would cause no problems for the constitutional framework,” Keith Whittington, a professor of politics at Princeton University, said.

While this isn’t at constitutional crisis level, the back-and-forth does tie in constitutional powers and what Pelosi can and cannot do here. Trump can deliver the State of the Union, but Pelosi has no obligation to let him do it from the House floor. Like many things Trump does, he’s pushing the boundaries of norms, rather than the law.

It’s Nancy’s house

This all began on January 16, when Pelosi basically uninvited Trump from giving the State of the Union speech in a letter, citing security concerns amid the government shutdown. She told him she can pick another date once the shutdown is over, or he can send his speech over in writing (as used to happen occasionally in America’s history).

This is, of course, part of the broader shutdown fight. Pelosi knows that Trump loves public attention, and she has total control over whether Trump can be officially invited to give the State of the Union at the Capitol.

But Trump’s not backing down. In a letter on Wednesday, he told Pelosi that he has “no security concerns” around the address and wants to go ahead as planned. “It would be so very sad for our Country if the State of the Union were not delivered on time, on schedule, and very importantly, on location!” Trump wrote.

Pelosi’s response? Basically, “Nope.”

Usually, the State of the Union is delivered to a joint session of Congress in the House at the invitation of the House speaker to the president. On Wednesday, Pelosi made clear she has no plans for a vote on a concurrent resolution that’s necessary to convene a joint session of Congress.

“No concurrent resolution, no joint session,” Cornell Law School professor Josh Chafetz told me in an email.

Donald Trump (AP) © ASSOCIATED PRESS Donald Trump (AP)

In other words, it’s essentially up to Pelosi whether Trump can deliver the State of the Union as it’s been done in recent years — from a podium on the House floor — or not.

The Constitution says the president has to inform Congress about the State of the Union. It doesn’t mandate where or how.

Article II, Section 3 of the United States Constitution states that 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.” But beyond that, it doesn’t go into specifics.

Vox’s Andrew Prokop has a complete explainer on the history of the State of the Union, but basically, the gist is that for much of American history, it’s been delivered in writing. For the first 12 years of the US, Presidents George Washington and John Adams traveled to Congress to deliver an oral speech, but from Thomas Jefferson until Woodrow Wilson, the State of the Union was sent over in writing. But, as mentioned above, these days it’s typically an oral speech given at the formal invitation of the speaker of the House. This is, of course, how things are usually done, but not how they have to be done.

The Constitution “doesn’t even require that it be given in person or on television,” Michael Gerhardt, a constitutional scholar at the University of North Carolina’s School of Law, said.

Donald Trump (Reuters) © Thomson Reuters Donald Trump (Reuters)

Trump technically has the right to enter the House chamber, even when Congress is out of session, but he needs House permission to speak from the podium or dais, PBS’s Lisa Desjardins pointed out. But a simple majority in the House can change the rules so that Trump no longer has the right to enter. Moreover, the House speaker controls the video and audio feeds from the House chamber, and when Congress isn’t in session, there’s no C-SPAN feed.

“It’s not that different than if we flipped the script a little bit and said, ‘Could Nancy Pelosi just walk into the Oval Office whenever she wanted to?’ Odds are the answer to that is no,” Gerhardt said.

Trump theoretically could try to barge into the House to deliver the State of the Union — and Pelosi could theoretically stop him, even by having him arrested. But that’s unlikely.

“I seriously doubt Trump will actually try and barge into the House to give his speech. He’s trying to get Pelosi to back down and pass the concurrent resolution,” Chafetz said. “Unless the government is reopened, I doubt she will — and in that case, I strongly suspect Trump will just decide to give the speech from somewhere else.”

Senate Majority Leader Mitch McConnell could potentially invite Trump to deliver the State of the Union from the Senate, but the Senate would have to vote on that. And the Senate chamber is much smaller than the House’s. Or Trump could speak on the steps of Congress, or somewhere else entirely.

On Wednesday, Trump told reporters he was “sad” about not doing the State of the Union at the Capitol but said he would “do something in the alternative.”

This is a political fight more than it is a constitutional one

The back-and-forth illustrates a bigger point about the government shutdown: This is all very silly. There’s no reason for nine government agencies to be shut down and hundreds of thousands of government employees to be furloughed and unpaid because Trump insists any government funding bill include billions of dollars for a border wall.

Donald Trump (Reuters) © Thomson Reuters Donald Trump (Reuters)

The standoff over the State of the Union isn’t a constitutional crisis, Whittington said, “though it is somewhat embarrassing.”

“If the president were to fail to deliver an oral State of the Union in the Capitol building, it would certainly highlight the partisan breakdown of an effectively operating federal government — but we have pretty much crossed that bridge already,” he said.

Trump doesn’t have to have money for the wall right now. There’s no urgent immigration crisis at the US-Mexico border — if there was, you think the president would have gone ahead and declared the national emergency he was weighing. He, Pelosi, and the rest of Congress could presumably reach an agreement to fund the government and work out immigration and border security subsequently. They’re just not doing it.

The shutdown over the wall is political gamesmanship, and so is this showdown over the State of the Union. Trump doesn’t seem to know how to win either fight.

In Photos: The complete history of the US State of the Union address (Business Insider)

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