Legislative Diplomacy After Zivotofsky

Zivotofsky was a case about the recognition power, but it was also the first in quite a while to offer any insight into the Justices’ views on the nature of the President’s power to communicate with foreign sovereigns. Given precedents like Curtiss-Wright, which famously quoted John Marshall for the proposition that the President is the “‘sole organ of the nation in its external relations,’” commentators have long assumed that diplomatic communication is an exclusively executive domain.

The past six months, however, have featured two high-profile examples of official contacts between Congress and foreign governments. In January, House Speaker John Boehner unilaterally invited Israeli Prime Minister Benjamin Netanyahu to address Congress on the subject of the Iranian nuclear program, and in March a group of 47 Republican Senators wrote an open letter lecturing the Iranians on certain features of the U.S. Constitution. These incidents, while deeply controversial, raised questions about the longstanding assumption of executive exclusivity and clarified a need for closer analysis on the precise nature of the Article II diplomacy power. They also suggested a need to explore whether there’s any affirmative support for legislative diplomacy in Article I.

What are Zivotofsky’s implications for this topic?

On my reading, the most important takeaway is that the Court’s interpretation of Article II leaves room for the possibility of a constitutional practice of legislative diplomacy. I say this for two reasons:

First, for an opinion that ruled in favor of executive power at the lowest ebb, Zivotofsky contains a lot of language that is surprisingly favorable to Congress. Most significantly, the majority expressly refused to hold that the President has “exclusive authority to conduct diplomatic relations” and ranged from hesitant to hostile in its treatment of the authorities that could most easily justify exclusivity. The Court flatly “decline[d] to acknowledge” that the President has “broad, undefined powers over foreign affairs” and characterized as dicta Curtiss-Wright’s language on the sole-organ theory. Justice Roberts similarly criticized Curtiss-Wright, concluding that the Court’s “precedents have never accepted such a sweeping understanding of executive power,” and the majority balked at an invitation to interpret the Vesting Clause as an independent source of authority. With Curtiss-Wright out of the picture and trepidation over the Vesting Clause Thesis, the argument that Article II allocates all official international communication exclusively to the President becomes harder to sustain.

Second, in giving weight to considerations of text, structure, original meaning, customary practice, and function, the majority opinion featured a methodological eclecticism that reinforces the validity of extra-textual arguments in favor of legislative diplomacy. As I’ve shown elsewhere, Congress has been communicating independently with foreign governments for a long time, and it’s now standard for members of the House and Senate to travel abroad and meet with foreign officials. This practice, moreover, carries important benefits as an informal means of investigating extraterritorial facts and a way for legislators to promote the interests of their constituents, and the State Department’s routine support suggests the Executive Branch agrees. If historical gloss and functionalism are alive and well with respect to the recognition power, then they would seem to apply to questions about legislative diplomacy, too.

To be sure, I don’t see Zivotofsky as a green light for Congress. Far from it. The Court made clear that the President has exclusive authority to dictate the content of official communications on issues for which unity of message is important, where there is a need for decisive and unequivocal action, and where there are benefits to be gained from engaging in “delicate and . . . secret diplomatic contacts.” The Court also explained that the President has “a unique role in communicating with foreign governments,” including “the power to open diplomatic channels . . . by engaging in direct diplomacy with foreign heads of state and their ministers.” Congress, by contrast, “has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.” Legislative diplomacy must take place within these constraints. In addition, the Court didn’t address whether Article I contains an affirmative source of international communicative authority, and thus left open the possibility that it doesn’t. But with these caveats, the idea that Congress has power to interface directly with foreign governments seems to survive Zivotofsky in the sense that it’s now harder to argue that Article II categorically precludes the practice.

[Cross-posted at Lawfare]

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