The Constitution - Reception of ambassadors

Presidential reception of ambassadors and other public ministers, understood by the Framers as a clerklike duty, a mere administrative function, was transformed by presidents in the twentieth century as a wellspring of discretionary authority to determine which nations the United States would have relations with and what the tone and temper of those relations would be.

The reception of an ambassador entails consequences under international law, chiefly the recognition of foreign governments and states. The Framers, operating against the backdrop of international law principles that held that the sovereign nations have a duty to receive ambassadors from other sovereign nations, determined, as Hamilton explained in Federalist No. 69, to impose this duty on the president as a matter of "convenience." Hamilton said that the authority "to receive ambassadors and other public ministers … is more a matter of dignity than authority. It is a circumstance which will be without consequence in the administration of government; and it was far more convenient that is should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor." Given Hamilton's explanation, there was no reason to view the "reception clause" as a source of discretionary policymaking authority for the president. In fact, Article 2, Section 3 of the Constitution emphatically declares, "He shall, [not 'may'] receive Ambassadors and other public Ministers," an injunction that stands in sharp contrast with the discretionary constitutional powers that the president may choose to exercise, such as the decision to "convene both Houses" of Congress. Thus, the Framers, as James Madison wrote in 1793, gave the president no prerogative whatever to reject foreign ministers. Madison explained that "when a foreign minister presents himself, two questions immediately arise: Are his credentials from the existing and acting government of his country? Are they properly authenticated?" Those questions, Madison noted, "are merely questions of fact," and if answered affirmatively, the president was duty bound to receive the minister.

The Framers' emphasis on the mechanical nature of the reception function, reflected their acceptance of the doctrine of de facto recognition, which requires diplomatic relations with the government that actually exercises controlling power, as opposed to the principle of de jure recognition, which counsels a determination of the legitimacy or legality of a governing regime. In a letter written on 30 December 1792 to Charles Cotesworth Pinckney, the U.S. minister to London, for the purpose of clarifying U.S. policy toward the revolutionary French government, Secretary of State Thomas Jefferson explained the rationale behind the American doctrine of de facto recognition: "We certainly cannot deny to other nations that principle whereon our own government is founded, that every nation has a right to govern itself internally under what forms it pleases and to change those forms at its own will."

The transformation of a humble administrative duty into a broad discretionary power to conduct foreign policy began under Woodrow Wilson. From 1913 to 1921 President Wilson, adhering to a theory of democratic legitimacy with respect to Latin American countries, refused to grant recognition to governments in that region that had come to power through revolution or violence when lawful constitutional means of achieving change existed. Then in 1920, Wilson, through Secretary of State Bainbridge Colby, declared that the United States would not recognize the Soviet Union, on the ground that the USSR was dedicated to the revolutionary overthrow of other governments in the state system. During the next thirteen years successive presidents adhered to Wilson's unilateral decision to refuse recognition of the Soviet Union, a policy that went largely unchallenged by an isolationist Congress. Ironically, this process of turning the Framers' reception function into a broad-based presidential foreign policy tool reached its full development when, in 1933, President Franklin D. Roosevelt decided to reverse the policy and recognize the Soviet Union, under the same constitutional authority that Wilson had abused to refuse recognition. Roosevelt's act of recognition then broadened into a unilateral agreement called the "Litvinov Assignment"—an agreement on property claims between the two nations. In United States v. Belmont (1937), Justice Sutherland upheld the validity of the agreement and said the pact derived its force from both the president's status as the sole organ of American foreign policy and his power to recognize foreign governments. Justice Sutherland stated that Senate consultation was not required. The Court again considered the validity of the Litvinov Assignment five years later in United States v. Pink (1942). Once more, the Court upheld the agreement, and enthusiastically embraced the "sole organ" doctrine and a capacious view of executive power. These decisions represented an exercise in judicial activism, and inflated the reception function into a towering structure of executive power. Thus in later years President Harry S. Truman felt authorized in his decision not to recognize the People's Republic of China as well as several of the communist satellite states of Eastern Europe. Under changing circumstances in later years, President Richard M. Nixon felt similarly authorized to reverse that policy in 1972 to extend what amounted to diplomatic recognition to the People's Republic of China, an effort that was completed in 1978 when President Jimmy Carter fully "normalized" relations with China through a unilateral decision to recognize the regime of Beijing and derecognize the competing government in Taiwan.

For many observers the extraordinary power exercised by the executive in the conduct of foreign policy is a principal element in Schlesinger's "imperial" presidency, and it constitutes a major threat to the democratic foundations of the American constitutional system. Yet the practice of executive usurpation, revelations of the activities of the Central Intelligence Agency abroad, the constitutional corruption inherent in the Iran-Contra affair, and the dangers posed by a pattern of unilateral presidential warmaking from Korea to Vietnam to Bosnia, have not moved Congress and the public to implement meaningful constitutional and political checks to halt presidential aggrandizement of power. Occasionally, individual members or even large blocs of members of Congress will challenge a unilateral presidential action. On 28 April 1999 the House of Representatives, by a tie vote, rejected a motion to authorize President Bill Clinton to conduct air and missile strikes against the former Yugoslavia. Clinton ignored the House vote and waged war on his own claim of authority. But the relatively infrequent and isolated criticisms that emerge from Capitol Hill have not risen to the level of an institutional challenge, in which Congress summons the will to defend its constitutional powers in foreign affairs. While defenders of the constitutional design for foreign policy might hope for a resurgent Congress, and even dare to dream of an ascendant Congress, there seems to be little political incentive for members to act because international issues rarely assume a significant role in election campaigns. There remains the possibility that some international issues, among them trade matters and environmental concerns, may assume greater importance among voters, which would transform those issues into constituent demands and thus stir Congress to assert its broad powers. However, George W. Bush declared early in his first term that he would halt U.S. participation in the Kyoto Accords, a worldwide effort to control global warming; announced that he would use military force to defend Taiwan against mainland China; and stated his intention to terminate the Antiballistic Missile Treaty of 1972, all unilateral executive actions that constitute a rank usurpation of congressional powers. Yet those declarations brought forth few protests from Congress in defense of its constitutional frontiers and provinces. Indeed, at century's turn, congressional acquiescence in the face of executive aggrandizement seemed as fully entrenched in the practice of American foreign policy as it did when the imperial presidency first took flight.

For others, however, the vast discretionary power exercised by the president is the price the nation pays to safeguard its national security interests abroad and its freedom at home. Executive domination of foreign policy, it has been asserted, is a reflection of the overweening realities of the international realm, which cannot be adequately addressed by a Constitution that is no longer relevant to international politics. Congressional primacy has become obsolete. There remains a debate, one initiated in the Constitutional Convention two centuries ago, on the question of whether unilateral executive control of foreign policy or legislatively inspired collective decision making is more suitable in a nation grounded on republican principles. It may well be the case that the values underlying the war clause and the other constitutional provisions that govern the conduct of American foreign policy are as compelling today as they were two hundred years ago.