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09/04/2017

Ryan Scoville on Unconstitutional Presidential Envoys
Michael Ramsey

At Lawfare, Ryan Scoville: Should the Senate Give Advice and Consent on Special Envoys?  From the introduction:

Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. ...

The post goes on to argue, though, that Section 301 merely restores the Constitution's original meaning regarding diplomatic appointments: 

As I’ve argued elsewhere, considerable evidence suggests that the Framers understood ad hoc diplomats such as treaty negotiators and special envoys to be “public Ministers” and “Officers of the United States” within the meaning of the Appointments Clause, without regard for title or duration of service. This understanding appears to have drawn heavily upon the definition of “public ministers” under the historical law of nations and to have influenced the official practice of the Washington, Adams, and Jefferson administrations, each of which repeatedly sought and obtained the Senate’s advice and consent for these kinds of appointments.

The response, in short, is that Section 301 is more or less redundant with the Framers’ understanding of the Appointments Clause itself. ...

Agreed, at least as a general matter.  (Professor Scoville and I disagree on some details, but the basic point seems right: the Constitution requires Senate approval of "Ambassadors, other public Ministers and Consuls.")