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04/22/2014

Can Congress Stop a Foreign Ambassador from Entering the United States?
Michael Ramsey

The Hill reports:

President Obama on Friday signed legislation aimed at stopping Hamid Aboutalebi, Iran's would-be U.N. ambassador, from entering the United States.

The bill, offered by Sen. Ted Cruz (R-Texas) and passed unanimously in both chambers of Congress, blocks admittance to the U.S. by representatives to the United Nations determined to have "engaged in terrorist activity" against the U.S. or its allies.

Aboutalebi has admitted that he worked as a translator and negotiator for the student group that held Americans hostage in 1979 at the U.S. Embassy in Iran for 444 days. His nomination drew cries of outrage from lawmakers on both sides of the aisle who accused Tehran of using the nomination as a deliberately provocative act.

But, the account continues, the President said in a signing statement he would treat the bill as “advisory” because otherwise it would be unconstitutional as infringing on the President’s foreign affairs power:

Obama, in a signed statement attached to the measure, warned the legislation curtailed his "constitutional discretion" and that he planned to treat the law as "advisory."

... [T]he president ... warned the legislation could "interfere" with his discretion to receive or reject ambassadors, a duty explicitly outlined in Article II of the Constitution. 

Obama noted that former President George H.W. Bush attached a similar signing statement in 1990 to legislation that barred entry of any U.N. representatives who had engaged in espionage against the United States. In that statement, Bush said "curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution.”

On the merits, the President seems correct.  Unlike in the Jerusalem passport case, the power at stake here – to receive ambassadors – is expressly given to the President in what appear to be mandatory terms (he “shall” receive ambassadors).  There is a slight complication in this particular case because the ambassador is an ambassador to the UN, not to the United States, but that probably isn’t enough to make a constitutional difference: the President should have authority to "receive" him into the United States, even if not "receiving" him personally. 

I am not aware of any early practice supporting Congress. And moreover, like in the Jerusalem passport case, I'm doubtful there's an enumerated congressional power in the first place, even leaving aside the exclusivity of the President's power.   If Senator Cruz has a constitutional argument for Congress’ authority, I haven’t seen it.

I can’t help noting that this incident supports the argument Professor Prakash and I made in our Yale Law Journal article on executive foreign affairs power: that the ambassador reception clause isn’t redundant even if the President also has a generic authority over foreign affairs from Article II, Section 1.  Unlike the general Article II, Section 1 power, the specific reception power is exclusive & so can’t be overcome even by a statute within Congress’ enumerated powers.  (We argued that the reception clause made clear that Congress could not also receive ambassadors, but we didn’t think of the case of Congress seeking to prevent the President from receiving an ambassador).

On the other hand, the President should simply have vetoed the law.  I don’t see how signing the law can be consistent with the President’s duty to uphold the Constitution (if the President is convinced the law is unconstitutional).  (See Saikrishna Prakash: Why the President Must Veto Unconstitutional Laws).  That seems particularly true when the unconstitutional provision is a standalone (as I believe it was here).  It might be a different situation if Congress included an unconstitutional provision in a complex bill also containing many sections that the President believed to be constitutional and beneficial.  Also, perhaps it would be different if the Supreme Court had said that similar laws are in fact constitutional (though I doubt it).  But in the standalone circumstance, I see no textualist/originalist (or even pragmatic) justification for failing to veto.