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08/09/2013

Can Congress Order a Consulate to Stay Open?
Michael Ramsey

Recent headlines inspire this hypothetical:

After the President orders various U.S. overseas diplomatic posts to close due to possible terrorist attacks, suppose Congress passes the Terrorist Defiance Act (TDA), directing that no diplomatic post shall be close because of terrorist threats.  Is the TDA constitutional?

Possible answers:

1.  No.  Congress has no enumerated power over diplomatic posts.  As a result, power over diplomatic posts belongs to the President as part of his residual executive power over foreign affairs (that is, the President has all executive foreign affairs powers that the Constitution does not assign to Congress).

2. Yes.  Fully functional diplomatic posts in foreign countries are important to facilitate "Commerce with Foreign Nations" and thus Congress' regulation of them is necessary and proper to carry into execution a power given to Congress in Article I, Section 8.  Congress' specific textual power overrides the President's more general foreign affairs power -- just as Congress' direct regulation of foreign commerce is obviously constitutional even though it may interfere with the President's diplomatic efforts.

I'm not entirely sure of the answer; I favor (1) because I think the connection to an enumerated congressional power is a stretch under the original meaning (under modern law, foreign diplomatic posts probably do have a "substantial effect" on foreign commerce).  But in any event I'm reasonably sure that the question turns on the scope of Congress' enumerated powers, not on the scope of a possible exclusive power of the President (a point I've made recently in related contexts here and here).

Even though we have an intuition (a correct one, in my view) that the President has constitutional control over diplomacy, it is very hard to find a grant of exclusive power in this situation.  In particular, the often-invoked power to receive ambassadors seems quite distant from the power to maintain or discontinue foreign posts.  Indeed, to put it more strongly, it seems to me textually preposterous to rest the whole of the President's diplomatic powers on the ambassadors clause.  But if the President's power comes instead from the executive power clause, as I think it must, then it is very hard to say that it is exclusive (especially when Alexander Hamilton, in Pacificus No. 1, said the executive foreign affairs power was concurrent).  Thus the only way to say that Congress cannot interfere is to say that Congress lacks power in the first place.  As I've discussed, that is why I think the recent "Jerusalem passport" case was wrongly reasoned, although rightly decided.