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ArtII.S3.2.1 Early Doctrine on Receiving Ambassadors and Public Ministers

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.

The third clause of Article II, Section 2 directs the President to “receive Ambassadors and other public ministers.” An early opinion from Attorney General Caleb Cushing interpreted “Ambassadors and other public ministers” to encompass “all possible diplomatic agents which any foreign power may accredit to the United States.” 1 According to John Bassett Moore in his famous International Law Digest, the term, as a practical construction of the Constitution, also encompasses all foreign consular agents who may not exercise their functions in the United States without an exequatur from the President.2 The power to “receive” ambassadors and other foreign diplomatic and consular agents includes the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.3

During the United States’ formative years, the Founders expressed differing views regarding the scope of the President’s reception power. Writing in 1790, Thomas Jefferson stated that “[t]he transaction of business with foreign nations is executive altogether.” 4 The function “belongs . . . to the head of that department, except as to such portions of it as are specially submitted to the Senate.” 5 Thus, when Edmond-Charles 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, then-Secretary of State Jefferson informed Genet 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.” 6 Secretary Jefferson accordingly returned the consul’s commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.

Consistent with Jefferson’s view, Congress later in 1798 passed An Act to Prevent Usurpation of Executive Functions, or the Logan Act, which prohibits U.S. citizens from engaging in unauthorized negotiations with foreign governments having a dispute with the United States.7 Congress enacted the law in response to the actions of a Philadelphia Quaker named George Logan, who went to Paris on his own to negotiate with the French Government in an effort to avert war between France and the United States.8 The next year, 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 twenty-seventh article of the Jay Treaty rather than leaving the matter to the courts. In Marshall’s view, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Thus, according to Marshall, “the demand of a foreign nation can only be made on [the President],” and “any act to be performed by the force of the nation is to be performed through him.” 9 Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall’s doctrine with elaboration.10

In contrast, James Madison expressed a more limited view of the President’s reception power. In his attack upon President George Washington’s Proclamation of Neutrality in 1793 at the outbreak of war between France and Great Britain, Madison argued 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, Madison disparaged the presidential function of reception, asserting that “little, if anything, more was intended by the [reception] clause, than to provide for a particular mode of communication, almost grown into a right among modern nations.” 11 The Clause, in his view, did nothing more than “point[ ] out the department of the government” that is “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.” 12 Accordingly, Madison concluded that “it would be highly improper to magnify the function into an important prerogative.” 13 The right to receive ambassadors, in his view, did not grant the Executive the right to, for instance, recognize a new foreign government—a right that “belongs to the nation.” 14

In defending Washington’s proclamation, Alexander Hamilton advocated for a broader view of the President’s reception power. Writing under the pseudonym Pacificus, Hamilton opined that

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 . . . . 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.15

In Hamilton’s view, this right of the Executive, in certain cases, “to determine the condition of the nation” can sometimes “affect the exercise of the power of the legislature to declare war.” 16 Nevertheless, Hamilton acknowledged that the Executive cannot control Congress’s exercise of that power. In his view, however, “the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision,” such that the two braches share concurrent authorities in particular circumstances.17

Jefferson likewise did not officially support Madison’s point of view. Writing about his July 10, 1793 conversation with Genet, Jefferson noted that he informed Genet that Congress was not the United States’ sovereign. Instead, Congress was “sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department.” 18 Thus, Jefferson explained to Genet, it is the President’s—and not Congress’s—responsibility “to see that treaties are observed,” and that “the Constitution had made the President the last appeal” for his decisions related to treaties.19

History has largely affirmed Hamilton’s view of the President’s reception power. After reviewing the circumstances surrounding the United States’ recognition of new states, governments, and belligerency before 1906, John Basset Moore observed that “[i]n every case, . . . the question of recognition was determined solely by the Executive.” 20 The President’s power to receive thus encompasses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states. By the same token, the power also encompasses the power to decline recognition, and thereby decline diplomatic relations with such new states or governments.21

7 Ops. Atty. Gen. 186, 209 (1855). back
5 John Bassett Moore, International Law Digest 15–19 (1906). back
4 Id. at 473–548; 5 id. at 19–32. back
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) in 5 Writings of Thomas Jefferson 161, 162 (P. Ford ed., 1895). back
Id. back
4 Moore, supra note 2, at 680–81. back
This measure is now contained in 18 U.S.C. § 953. back
See Memorandum on the History and Scope of the Law Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 64th Cong. (1917). The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the Logan Act are given in Edward Corwin, supra note 1, at 183–84, 430–31. back
10 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) back
9S. Doc. No. 56, 54th Cong. (1897). back
1 Letters and Other Writings of James Madison 611 (1865). back
Id. back
Id. back
Letters of Helvidius, 5 Writings of James Madison 133 (G. Hunt ed., 1905). back
Letter of Pacificus, No. 1, 7 Works of Alexander Hamilton 76, 82–83 (J. Hamilton ed., 1851). back
Id. back
Id. back
4 J. Moore, supra note 2, at 680–81. back
Id. back
Id at 243–44. (noting that “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” ), See also Restatement, Foreign Relations §§ 204, 205. back
See 4 J. Moore, supra note 2, at 243–44. back