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An invitation to constitutional conflict?

February 2, 2015 by Nicandro Iannacci


(credit: Flickr)
(credit: Flickr)

On March 3, Israeli Prime Minister Benjamin Netanyahu will address a joint session of Congress at the request of House Speaker John Boehner. The event has set off a debate over whether Netanyahu’s appearance is an unconstitutional intrusion upon the President’s foreign policy powers.


Boehner announced the foreign leader’s visit one day after President Barack Obama’s State of the Union address, which the Speaker thought had insufficiently addressed foreign policy concerns.


“I don’t believe I’m poking anyone in the eye,” he said. “There is a serious threat in the world, and the president last night kind of papered over it. And the fact is that there needs to be a more serious conversation in America about how serious the threat is from radical Islamic jihadists and the threat posed by Iran.”


Josh Earnest, White House press secretary, was puzzled by the announcement. “The typical protocol would suggest that the leader of a country would contact the leader of another country when he’s traveling there,” he said. “That certainly is how President Obama’s trips are planned when we travel overseas. So this particular event seems to be a departure from that protocol.”


But some constitutional scholars think the invite is a matter not of manners, but of law.


Michael Ramsey, law professor at the University of San Diego, points to Article I, Section 8 of the Constitution, which features a laundry list of congressional powers and responsibilities. The authority to host a foreign leader is not included.


Article II, Section 3, on the other hand, says that the President “shall receive Ambassadors and other public Ministers.” This reception power is understood to be an exclusive power of the President, says Ramsey, by virtue both of tradition and of its specific call-out in Article II.


David Bernstein, law professor at George Mason University, agrees, adding that “while Congress has a role in foreign policy, direct diplomatic relations with foreign governments are exclusive in the executive, so the nation speaks with one voice–Congress could not have its own State Department, for example.”


Peter Spiro, law professor at Temple University and first to pounce on the issue, looks also to the Logan Act, passed in 1799, which prohibits private U.S. citizens from corresponding with foreign governments without proper authorization. The law may be considered evidence of the Founders’ understanding that foreign policy is the domain of the executive branch.


Other scholars see things differently.


Gerard Magliocca, law professor at Indiana University,  argues that Obama has given implied consent to Netanyahu’s speech by not using the means at his disposal—say, denying a visa—to prevent a visit from happening at all.


Seth Barrett Tillman, law lecturer at Maynooth University, adds that Congress also has power at stake in the debate—specifically, its power “to inform itself and to maintain exclusive control over access to its physical facilities.” The debate, he says, is one over competing powers, and Congress should win because of the President’s implied consent.


Ryan Scoville, assistant law professor at Marquette University, doesn’t come down squarely on one side or another, but he says critics of the Speaker’s move are glossing over the complex history of interaction between American legislators and foreign officials.


“No one who cares about original meaning or customary practice can assert that Boehner’s invitation is unconstitutional simply because it is legislative diplomacy,” he writes. “The argument must be, instead, that it is legislative diplomacy of a particular type.”


Regardless, the inter-branch spat says nothing positive about the state of American politics.


“Under normal circumstances, the President would likely approve of the Speaker wishing to invite the [prime minister] of an ally to address Congress,” writes South Texas College of Law assistant professor Josh Blackman. “But we are not living in normal times.”


Nicandro Iannacci is a web strategist at the National Constitution Center.


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