Israeli prime minister Benjamin Netanyahu’s upcoming address to Congress, at Congress’s invitation, is drawing significant criticism — that much is no great surprise. What does surprise, however, is one particular criticism: that the event will be not just bad policy, but even unconstitutional.
That criticism may have originated with a blog post by law professor Peter Spiro, but it has been embraced and amplified, to varying degrees, by significant voices in the conservative legal movement: Michael Ramsey, Josh Blackman, and David Bernstein.
Ramsey, writing on the Originalism Blog, captures the two basic threads of the argument: First, Congress cannot host foreign leaders, because none of the powers granted to Congress by the Constitution expressly covers such events. Second, the Constitution does expressly empower the president to “receive Ambassadors and other public Ministers,” and Congress’s invitation to Netanyahu undermines the president’s constitutional authority in this sphere.
Neither argument is as conclusive as he suggests. True, Congress does not have a specific, explicit constitutional authorization to meet with foreign leaders, but then again the same could be said of Congress’s convening of hearings, oversight inquiries, public events, or other receptions undertaken to support Congress’s ultimate lawmaking and appointment-confirming actions. Congress does, after all, have constitutional powers to make appropriations in support of foreign policy, to confirm the appointment of diplomatic personnel, and to ratify treaties. Hearing from foreign leaders — merely hearing from them — can support those constitutional objectives, just as congressional hearings support Congress’s legislative actions.
Similarly, while the president’s authority to “receive Ambassadors and other public Ministers” is surely a broad grant of power, it strains credulity to suggest that Netanyahu’s visit actually interferes with the president’s exercise of that power. The president’s authority to recognize foreign nations, long recognized as implicit in that constitutional grant, is not at issue here: the administration recognizes the Israeli government as lawful; Congress is not purporting to recognize a government not recognized by the president. Similarly, the president can exclude foreign officials from the United States, but the Obama administration is ordering no such thing. So while Netanyahu is here, he can meet with Americans — whether with the people (say, at an event hosted by the Emergency Committee for Israel), or with their elected representatives.
Ramsey attempts to analogize this to the “Citizen Genet Affair,” the 1793 episode in which the French government directed communications to Congress, rather than to President Washington, in the hopes of finding an audience more receptive than the Washington administration, given its neutrality between Britain and France. (Ramsey tells this story nicely in a 2001 law review article, too.) The administration, through Secretary of State Jefferson, asserted that the president alone was “the only channel of communication between this country and foreign nations,” and Congress acquiesced to that assertion of power. But this analogy loses all sense of proportion: France’s efforts in 1793 — commissioning privateers, planning land-based expeditions in the United States, and establishing French prize courts in the United States — went well beyond the mere speech that Netanyahu would make to Congress.
Indeed, one wonders how far such arguments against Congress cut. Would Professor Spiro argue that members of Congress cannot travel abroad to meet foreign officials — such as Nancy Pelosi’s 2007 visit to Syria? Would Professor Ramsey prohibit Republican presidential candidates, including members of Congress, from traveling abroad to meet with foreign audiences and leaders, as President Obama did in 2008 — including a meeting with Netanyahu, and then-Prime Minister Olmert — and Governor Romney did in 2012?
In the end, one cannot seriously argue that Congress’s invitation to Netanyahu obstructs or obfuscates the executive branch’s policies toward Israel, because the Administration’s view of Israel is by now patently clear. We saw this in the still-pending Supreme Court cases of Zivotofsky v. Kerry, in which the Obama administration claims authority to nullify a federal law providing that Jerusalem-born Americans can receive a passport designating Israel as their place of birth. (A case in which the Obama administration offered an ill-conceived analogy comparing Israel’s control of Jerusalem to Russia’s invasion of Crimea.) Nothing Congress does, pursuant to its longstanding constitutional powers affecting foreign policy, will confuse anyone as to the official position of the United States, under President Obama, with respect to Israel.
Finally, speaking of the Supreme Court, Professor Spiro’s aggressive criticism of Congress’s relations with foreign leaders conveniently leaves aside the third branch of government: the Supreme Court. Would Spiro, or other law professors critical of Congress and Netanyahu, impose similar constraints on the Court’s communications with foreign nations and leaders? The Court often receives “amicus briefs” from foreign nations and leaders, urging the Court to adopt various constitutional interpretations — not just in the small subset of cases “affecting ambassadors, other public ministers and consuls” (over which the Court has constitutional jurisdiction), or even in cases affecting foreign policy more broadly (e.g., Guantanamo and immigration), but also those involving purely domestic issues of constitutional law, such as the death penalty. Would Spiro and others prohibit the Supreme Court from accepting any such briefs, except the briefs authorized by the president? Or is Congress the only branch of government that must be walled off from foreign voices?
When these constitutional arguments are levied at Congress by either critics of the Republican party or critics of Israel, they are rather easily marginalized as political argument wrapped up in constitutional rhetoric. But when they come from thoughtful conservatives, or supporters of Israel, who might be presumed to disagree with the president on the political or policy merits, they deserve to be taken seriously. With all due respect to my friends now criticizing Congress, I believe they are asserting a much too narrow view of the law, essentially missing the constitutional forest for the trees.
