THE STATEMENTS AT ISSUE
“Today I have signed into law S. 2195, an act concerning visa limitations for certain representatives of the United Nations. S. 2195 amends…the Foreign Relations Authorization Act…to provide that no individual may be admitted to the United States as a representative to the United Nations, if that individual has been found to have been engaged in espionage or terrorist activity directed against the United States or its allies, and if that individual may pose a threat to United States national security interests….As President Bush observed, ‘curtailing by statute my constitutional discretion to receive or reject ambassadors is neither a permissible nor a practical solution.’ I shall therefore continue to treat [this law] as advisory in circumstances in which it would interfere with the exercise of this discretion.”
– President Obama, in a statement April 18 about his signature on a new law passed unanimously in both house of Congress, following his decision a week earlier to refuse to admit to the United States the new delegate to the United Nations from Iran, Hamid Aboutalebi, because of his alleged role in a plot to storm the U.S. Embassy in Tehran and take U.S. hostages in 1979. That exclusion came before the President decided to sign the law over his own constitutional objections.
“The U.S. is now in contempt of its obligation under the U.S.-U.N. treaty known as the ‘Headquarters Agreement,’ which was signed in 1947. Section 11 of this Agreement expressly prohibits the U.S. from imposing any restrictions on travel to the U.N. by representatives of U.N. member states….Even the U.S.’s own law, enacted in 1947, which imposes certain restrictions with respect to foreign officials who may pose a security risk to the U.S., does not give the U.S. government the right to a blanket exclusion.”
– A statement published online April 19 on PressTV, the Iranian government’s international news network.
WE CHECKED THE CONSTITUTION, AND…
In the Constitution’s Article II, describing the powers of the presidency, there are back-to-back provisions in Section 3: the president “shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed.” Both of those provisions are at issue in the three-way dispute, between President Obama, Congress and the government of Iran, over who will be allowed to represent Iran in the United Nations.
Obviously, each sovereign nation has the right to decide for itself who will be its representatives to this global assembly. But the U.N. sits on American soil, and the U.S. government, like all sovereign nations, is a jealous guardian of its own borders and of its own interior lands.
Like most of the provisions of the Constitution, the two that seem to bear most directly on the dispute over Iran’s delegate to the U.N. do not have a fixed or literal meaning. Presidents for many decades have claimed that the power to “receive” ambassadors is not just a ceremonial duty when a diplomat comes calling, but actually contains within it the full and, they have asserted, the exclusive power to decide which foreign governments will be officially recognized by the U.S. government. (Just yesterday, by the way, the Supreme Court granted review of an unrelated new case that tests whether that power of recognition is exclusive to the White House. That is a dispute over U.S. relations with Israel, not Iran.)
Presidents for many decades also have argued that, if they believe that a bill passed by Congress violates the Constitution, the Chief Executive – even though he signs such a measure into law – has a duty not to carry it out, at least not in its specific terms. However much it may insult Congress, or flout its will, presidents have insisted on this constitutional privilege. They have sometimes interpreted the phrase “faithfully execute” to mean less than full obedience to the text of a law. (This mode of constitutional interpretation has its own name – “departmentalism,” or the theory that, by taking an oath to defend the Constitution, each of those serving in the branches of the national government must protect its own powers from encroachment.)
As it happens, Congress and the President are in full agreement that Iran’s current choice of a U.N. delegate is not welcome in this country. Obviously, though, they do not agree on whose call that is, under the Constitution. If Congress were to undertake to override a presidential choice about a foreign national’s entry into the U.S., the White House would surely fight back.
In addition, President Obama and Congress are not in full agreement about how he has used the powers of his office in a more general sense. Frustrated by the frequent gridlock in Congress over his policies, the President has vowed to act – and has acted – to implement at least some of his preferred policies by a stroke of his Executive pen, without seeking Congress’s approval. Republican leaders in Congress, in fact, have called some of these initiatives “lawless.”
The federal courts, including the Supreme Court, have some role to play in these constitutional struggles (as in the new case over U.S. dealings with Israel), but they can do so only if there is a way for someone to file a lawsuit to bring in the courts. It is difficult to imagine a lawsuit that members of Congress could successfully file against the president in one of these disputes; the courts have largely tried to stay out of what they call “political questions” (political in the larger sense of the word, meaning “non-judicial”).
And it is also probably not very promising for Iran to try to pursue a legal grievance in U.S. courts: what right, under U.S. law, could that government claim had been violated? Is the U.N. “Headquarters Agreement” on the admission of diplomats to be U.N. delegates enforceable by an excluded diplomat? Would that agreement trump a U.S. law on the subject, limiting entry for national security reasons? U.S. courts are not really comfortable resolving issues of foreign affairs and diplomacy, although they, of course, are not wholly excluded from the field.
Iranian officials have said they will pursue a grievance at the U.N. itself. That may be their only real option.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.