The Conduct of Foreign Relations
SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
AnnotationsThe Right of Reception: Scope of the Power
“Ambassadors and other public ministers” embraces not only “all possible diplomatic agents which any foreign power may accredit to the United States,”655 but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President.656 The power to “receive” ambassadors, et cetera, includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.657 Furthermore, this power makes the President the sole mouthpiece of the nation in its dealing with other nations.The Presidential Monopoly
Wrote Jefferson in 1790: “The transaction of business with foreign nations is executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”658 So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that “as the President was the only channel of communication between the United States and foreign nations, it was from him alone ‘that foreign nations or their agents are to learn what is or has been the will of the nation’; that whatever he communicated as such, they had a right and were bound to consider ‘as the expression of the nation’; and that no foreign agent could be ‘allowed to question it,’ or ‘to interpose between him and any other branch of government, under the pretext of either’s transgressing their functions.’ Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. ‘I inform you of the fact,’ he said, ‘by authority from the President.’ Mr. Jefferson returned the consul’s commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.”659
The Logan Act.—When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States, his enterprise stimulated Congress to pass “An Act to Prevent Usurpation of Executive Functions,”660 which, “more honored in the breach than the observance,” still survives on the statute books.661 The year following, John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts. He said: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.”662 Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall’s doctrine with elaboration.663
A Formal or a Formative Power.—In his attack, instigated by Jefferson, upon Washington’s Proclamation of Neutrality in 1793 at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power “to declare war” In support of this proposition he disparaged the presidential function of reception: “I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it.”664
The President’s Diplomatic Role.—Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception,665 adopted a very different conception of it in defense of Washington’s proclamation. Writing under the pseudonym, “Pacificus,” he said: “The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become as an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a concurrent authority in the cases to which it relates.”666
Jefferson’s Real Position.—Nor did Jefferson himself officially support Madison’s point of view, as the following extract from his “minutes of a Conversation,” which took place July 10, 1793, between himself and Citizen Genet, show: “He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. ‘But,’ said he, ‘at least, Congress are bound to see that the treaties are observed.’ I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. ‘If he decides against the treaty, to whom is a nation to appeal?’ I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea.”667The Power of Recognition
In his endeavor in 1793 to minimize the importance of the President’s power of reception, Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting state had the right along with the possession. He said: “This belongs to the nation, and to the nation alone, on whom the government operates. . . . It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors.”668
Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new states or governments. The affirmative precedents down to 1906 are succinctly summarized by John Bassett Moore in his famous Digest, as follows: “In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility.”669
An examination of this historical practice, along with other functional considerations, led the Supreme Court to hold in Zivotofsky v. Kerry that the Executive retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.670 Although Congress, pursuant to its enumerated powers in the field of foreign affairs, may properly legislate on matters which precede and follow a presidential act of recognition, including in ways which may undercut the policies that inform the President’s recognition decision, it may not alter the President’s recognition decision.671
The Case of Cuba.—The question of Congress’s right also to recognize new states was prominently raised in connection with Cuba’s successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: “The ‘recognition’ of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in ‘executive session.’ The legislative branch of the government can exercise no inﬂuence over this step except, very indirectly, by withholding appropriations. . . . Nor can the legislative branch of the government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties.”
“Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. . . . Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct. That it is correct . . . [is] shown by the opinions of jurists and statesmen of the past.”672 Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end, and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare.673 The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively presidential act.
The Power of Nonrecognition.—The potentialities of nonrecognition were conspicuously illustrated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the de facto government of Mexico, thereby contributing materially to Huerta’s downfall the year following. At the same time, Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence, and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover administration to recognize the independence of the Japanese puppet state of Manchukuo early in 1932 was based on kindred grounds. Similarly, the nonrecognition of the Chinese Communist Government from the Truman Administration to President Nixon’s de facto recognition through a visit in 1972—not long after the People’s Republic of China was admitted to the United Nations and Taiwan excluded—proved to be an important part of American foreign policy during the Cold War.674
655 7 Ops. Atty. Gen. 186, 209 (1855).
656 5 J. Moore, International Law Digest 15–19 (1906).
657 Id. at 4:473–548; 5:19–32.
658 Opinion on the Question Whether the Senate Has the Right to Negative the Grade of Persons Appointed by the Executive to Fill Foreign Missions, April 24, 1790, 5 Writings Of Thomas Jefferson 161, 162 (P. Ford ed., 1895).
659 4 J. Moore, supra at 680–81.
660 This measure is now contained in 18 U.S.C. § 953.
661 See Memorandum on the History and Scope of the Law Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 64th Congress, 2d Sess. (1917). The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the “Logan Act” are given in E. Corwin, supra at 183–84, 430–31.
662 10 Annals Of Congress 596, 613–14 (1800). Marshall’s statement is often cited, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 319 (1936), as if he were claiming sole or inherent executive power in foreign relations, but Marshall carefully propounded the view that Congress could provide the rules underlying the President’s duty to extradite. When, in 1848, Congress did enact such a statute, the Court sustained it. Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).
663 S. Doc. No. 56, 54th Congress, 2d Sess. (1897).
664 1 Letters And Other Writings Of James Madison 611 (1865).
665 No. 69 (J. Cooke ed. 1961), 468.
666 Letter of Pacificus, No. 1, 7 Works Of Alexander Hamilton 76, 82–83 (J. Hamilton ed., 1851).
667 4 J. Moore, supra at 680–81.
668 Letters of Helvidius, 5 Writings Of James Madison 133 (G. Hunt ed., 1905).
669 1 J. Moore, supra, 243–44. See Restatement, Foreign Relations §§ 204, 205.
670 Zivotofsky v. Kerry, 576 U.S. ___, No. 13–628, slip op. (2015). The Court identified the Reception Clause, along with additional provisions in Article II, as providing the basis for the Executive’s power over recognition. Id. at 9–10. See supra Clause 1. Powers and Term of the President: Nature and Scope of Presidential Power: Executive Power: Theory of the Presidential Office: The Zivotofsky Case.
671 See Zivotofsky, slip op. at 27. While observing that Congress may not enact a law that “directly contradicts” a presidential recognition decision, the Court stated that Congress could still express its disagreement in multiple ways: “For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the President’s recognition decision.” Id.
672 S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20–22.
673 Senator Nelson of Minnesota said: “The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power—the highest power given under the Constitution—we have the right, the intrinsic right, vested in us by the Constitution, to say how and under what conditions and with what allies that war-making power shall be exercised.” 31 Cong. Rec. 3984 (1898).
674 President Carter’s termination of the Mutual Defense Treaty with Taiwan, which precipitated a constitutional and political debate, was perhaps an example of nonrecognition or more appropriately derecognition. On recognition and nonrecognition policies in the post-World War II era, see Restatement, Foreign Relations, §§ 202, 203.