A Response on Netanyahu's Address to Congress
Seth Barrett Tillman
I think the question posed – Is Netanyahu’s addressing Congress constitutional? – is closer than Professor Bernstein’s and Professor Ramsey's posts suggest. I see this question as a competition between two implied powers (albeit, perhaps, each power is beyond the scope of the Necessary & Proper Clause). But Professor Ramsey suggests that the President can rely on an enumerated power.
Article II, Section 3, provides that “he [the President] shall receive Ambassadors and other public Ministers.” In this situation, Prime Minister Netanyahu, appearing as the official representative of his country, should be classed as a “public Minister.”
I don’t think that is right. “Public minister” in everyday modern American-English might extend to all foreign government officials. However, as I understand it, back in 1788-1789, the language “other public Ministers” extended to diplomatic officials having lesser status or rank than “Ambassadors”. That is (I suspect) the reason “public Minister” follows “Ambassadors” in Article II, Section 3. There are further diplomatic officials having even lower status than “public Ministers”; they are called “consuls”. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power); Article 3, Section 2, Clause 1 (extending the judicial power to “Ambassadors, other public Ministers and Consuls”); Article 3, Section 2, Clause 2 (same). Foreign legislative leaders and foreign heads of government do not squarely fall under the “public Minister” rubric. Moreover, a legislative leader who is not a minister (a/k/a cabinet member), who does not control a ministry (a/k/a an American agency) is not a “public Minister” at all.
As an abstract matter, the answer to the original query should be resolved as a competition between two sets of implied powers: on the one hand, the President’s power to act as the sole channel of official communications between the national government and foreign powers, and, on the other hand, Congress’ power to inform itself and to maintain exclusive control over access to its physical facilities. Framed this way, the question is reasonably close. But there is an easy way to resolve the dispute. The President and his officials control the borders; that is, the President can physically exclude foreigners from entering the United States, particularly where such foreigners intend to assist (purported) violations of the President’s implied constitutional powers. If the President refuses to exclude, where self-help is in easy reach, that is implied consent. And Congress should prevail on these facts.
To put it another way, certain undocumented aliens / illegal immigrants are in the United States in contravention to express statutory provisions. But the President does not have to enforce each such statutory provision against any one such person. If the President exercises his discretion not to enforce the power to arrest, try, and exclude such a person, the President could even (theoretically) take such a person on a tour of the White House or make that person his personal guest at a State of the Union address (as insane as that might sound). Congress might exclude such a person from its physical premises, but if it does not do so, that is implied consent by Congress to the person’s presence during the President’s annual address. Just so – if the President’s border control officials admit Netanyahu at a time it is publicly known Netanyahu intends to speak to Congress, such admission by the President constitutes implied consent to Netanyahu’s addressing Congress.