« Natural Rights, Substantive Due Process and Originalism
Michael McConnell
| Main | Frederic Bloom & Nelson Tebbe: Countersupermajoritarianism (UPDATED: Larry Solum Responds)
Michael Ramsey »

02/05/2015

My Response on the Boehner/Netanyahu Invitation
Michael Ramsey

At Constitution Daily, Nicandro Iannacci has a good overview of last week's blog-driven constitutional debate regarding Prime Minister Netanyahu's address to Congress: An invitation to constitutional conflict? (surveying the views of David Bernstein, Peter Spiro, Seth Barrett Tillman (on this blog), Gerard Magliocca, Ryan Scoville and me). 

In this post I want to briefly respond to Seth Barrett Tillman's views on the other side.  To recap, my view is that (a) Congress lacks an Article I, Section 8 power to receive foreign diplomatic agents, at least absent the President's approval; (b) the President has diplomatic power from Article II, Section 1's vesting of executive power; (c) moreover, specifically as to this situation, the President has exclusive power to receive ambassadors and other public ministers; and (d) all this is confirmed by George Washington's conduct as President, as he claimed exclusive power to deal with representatives of foreign nations.

Professor Tillman principally takes issue with points (a) and -- especially -- (c):

“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). ...
 
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.
 
On the Article II, Section 3 point, I agree that "public minister" was sometimes used at the time in a technical way to refer to lesser diplomatic officials.  But it would be odd -- to the point of incoherence -- to use it this way in the Constitution, so that the protections accorded ambassadors and lower ranking diplomats did not also encompass other high-ranking diplomats.  I think Article III, Section 2 cuts in exactly to opposite way from Professor Tillman.  Consider, in this regard, its grant of original jurisdiction for cases affecting "Ambassadors, other public Ministers, and Consuls" [the latter being very low ranking diplomats].  It seems wholly implausible that the Constitution would give the Supreme Court original jurisdiction over cases involving consuls but not over cases involving a nation's foreign minister acting in a diplomatic capacity, since the point was to put the most sensitive cases directly to the Court.  Rather, the list seems clearly designed to encompass all representatives of foreign nations, of whatever rank.  The reception clause omits consuls (because they rank too low for the President to be bothered with them), but in other respects it is parallel: all major diplomatic representatives are received by the President.  It would make no sense to give the President an exclusive power and duty to receive mid-level diplomats but not high ranking ones. 
 
Rather, I think "minister" was used generally to mean a diplomatic representative of whatever rank. Ambassadors were called ministers -- hence the "other" in "Ambassadors and other public Ministers").   Diplomatic representatives ("ministers")  who were not ambassadors -- whatever their status -- were "other" ministers.  And reading the clause to mean "ambassadors and other diplomatic representatives" makes perfect sense of both the reception clause and the original jurisdiction clause, conveying on the President (and, in a different respect, on the Court) full power in matters concerning diplomatic representatives of whatever description.  So while there may be a possible narrow reading, there is also a possible broad reading, and the broad reading is the only one that makes sense in the context of the reception clause (and the original jurisdiction clause).
 
Finally, as to Congress' power, I agree that Congress generally may have inherent power to inform itself about matters related to its enumerated powers (derived from Parliament's power, I assume).  But once the communication is not just with an ordinary person but with the representative of a foreign nation, it's a different matter.  Relations with foreign nations are executive in nature, as described by Montesquieu and Blackstone, among others.  I would be fairly surprised if Parliament had thought it had power to communicate with representatives of a foreign nation over the king's objection.  Thus unlike ordinary information seeking, such communications are not a traditional inherent power of a legislature; for Congress to have them, they would have to be granted expressly.  Perhaps individual members of Congress may communicate individually and informally on their own behalf, but an appearance before Congress as a whole, formally assembled, is an official act of Congress, not the private act of a member, and so requires a specific constitutional source of power.