ArtII.S3.1.2.1 Right to Receive Ambassadors and Other Public Ministers: Overview

Article II, Section 3:

He shall from time to time give to the Congress Information of 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.

Ambassadors and other public ministers embraces not only all possible diplomatic agents which any foreign power may accredit to the United States,1 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.2 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.3 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.4 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.5

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,6 which, more honored in the breach than the observance, still survives on the statute books.7 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.8 Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall’s doctrine with elaboration.9

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.10

The President’s Diplomatic Role

Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception,11 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.12

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.13

Footnotes

  1.  Jump to essay-17 Ops. Atty. Gen. 186, 209 (1855).
  2.  Jump to essay-25 J. Moore, International Law Digest 15-19 (1906).
  3.  Jump to essay-3Id. at 4:473-548; 5:19-32.
  4.  Jump to essay-4Opinion 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).
  5.  Jump to essay-54 J. Moore, supra at 680-81.
  6.  Jump to essay-6This measure is now contained in 18 U.S.C. § 953.
  7.  Jump to essay-7See 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.
  8.  Jump to essay-810 Annals of Cong. 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).
  9.  Jump to essay-9S. Doc. No. 56, 54th Congress, 2d Sess. (1897).
  10.  Jump to essay-101 Letters and Other Writings of James Madison 611 (1865).
  11.  Jump to essay-11No. 69 (J. Cooke ed. 1961), 468.
  12.  Jump to essay-12Letter of Pacificus, No. 1, 7 Works of Alexander Hamilton 76, 82–83 (J. Hamilton ed., 1851).
  13.  Jump to essay-134 J. Moore, supra at 680-81.