Is Boehner’s Netanyahu Invite Unconstitutional?

by Peter Spiro

John Boehner has invited Bibi Netanyahu to address Congress. There’s a modern tradition of foreign leaders appearing before the legislature (list here). I’m willing to bet that every single one of those appearances was pre-cleared with the State Department or White House in advance.

I’m no student of Middle East politics, but it’s seems pretty clear that the the White House and the congressional GOP leadership are at loggerheads on US policy here and that the Boehner invitation is meant to advance the GOP (and Israeli) position on Iran. In the past, when members of Congress have gone freelance on foreign policy there’s been a tradition of waving around of the Logan Act, which provides:

Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

It happened most prominently when Jim Wright played footsie with Nicaragua’s Sandinista regime in the 1980s. It was suggested as a problem as recently as 2007 when Nancy Pelosi visited Syria against Bush Administration wishes. As conservative commentator Bob Turner argued in a Wall Street Journal op-ed (“Illegal Diplomacy“):

consider this statement by Albert Gallatin, the future Secretary of the Treasury under President Thomas Jefferson, who was wary of centralized government: “it would be extremely improper for a member of this House to enter into any correspondence with the French Republic . . . As we are not at war with France, an offence of this kind would not be high treason, yet it would be as criminal an act, as if we were at war . . . .” Indeed, the offense is greater when the usurpation of the president’s constitutional authority is done by a member of the legislature — all the more so by a Speaker of the House — because it violates not just statutory law but constitutes a usurpation of the powers of a separate branch and a breach of the oath of office Ms. Pelosi took to support the Constitution.

No intent here to compare Netanyahu and Assad, but the logic of presidential control applies in both cases. (This isn’t about actual prosecution under the Logan Act. No one is ever actually prosecuted under the measure; it’s more a focal point for highlighting structural aspects of foreign relations.) In both cases, presidential powers are “embarrassed” in the terms of Curtiss-Wright. Will the Wall Street Journal take Boehner to task for his move? Somehow I doubt it. (For that matter how could constitutional originalists square this with the Framers’ intent? No head of a foreign state appears to have addressed Congress prior to 1919.)

The White House has called the Boehner move a breach of protocol. If this were happening beyond the political anomalies of the Middle East, I wonder if it might be using some stronger language. In any case the episode will set a precedent for congressional bypass of executive branch foreign policy in interacting, fairly formally, with foreign government leaders. (Will the Speaker host something like a state dinner for Bibi?)

Mind you, I’m not sure it’s a bad precedent (again, leaving aside policy particulars of the ME situation). It’s a fact of life that governmental components are now semi-autonomous foreign policy players in a way that would have been unimaginable in the 18th century. The constitutional custom, norms, “protocols” — whatever you want to call them — are catching up to those realities. Presidents will just have to learn to deal with the new tools of foreign policy dissent.

UPDATE: More thoughts from me on this here. On the originalism point, don’t take it from me, take it from Mike Ramsey, easily the leading expert on originalism in the context of foreign affairs. The VC’s David Bernstein, a consistent Israel/Netanyahu/GOP backer, is also on board in thinking there is a constitutional problem.

25 Responses

  1. Even if the invitation is in some sense “unconstitutional,” who has standing to enforce the prohibition? Is some court going to enjoin Speaker Boehner from extending the invitation? At whose behest?

    In any event, it’s obvious here that the Speaker’s intent is not to “influence the measures or conduct of any foreign government” but instead to influence the policy making of the US government, and it’s hard to see how that is unconstitutional.

  2. “or defeat the measures of the United States” — Logan Act seems to apply. Good catch Peter.
    Whether or not it is unconstitutional or a violation of the Logan Act, it is a blatant power grab contrary to Executive prerogatives in foreign affairs. Because Netanyahu secretly accepted, it is an affront to the United States of America!

  3. I’m not sure about the originalism critique. It’s pretty clear that influential members of the Washington Administration viewed the executive as the exclusive channel for official communication between Congress and foreign governments. But it’s also clear that members of the First Congress communicated directly with foreign officials in a variety of ways, all without drawing any apparent objection from the executive, and without any apparent executive involvement. It’s not too hard to go from there to the conclusion that Boehner can invite Netanyahu without consulting the President. Or at least, it’s not obvious that there’s a material difference between what’s going on here and the various types of legislative diplomacy pursued by the First Congress.

  4. At the risk of being trite I must point out that two have played at this game of influence.

  5. There is a difference between “embarrassing” (from the Portuguese for tying up a horse) incidental and contingent Presidential powers and directing the national debate on important issues of foreign policy. Although the President is the “sole organ” of the government when it comes to foreign affairs, Congress can certainly direct the work of the Executive. I think we’re seeing a structural adjustment of the relationship between the Branches here. The Constitutional power of the President to receive ambassadors has been stretched very far over the past hundred years or so, and it might be returning to something closer to its original shape.

  6. Response…
    So congress has no authority to invite a foreign government official to testify before a committee of the whole congress? Isn’t congress empowered to hear testimony from any person when consudering legislation? Wouldn’t this all be alliwable under the speech and debate and legislative powers of congress?

    I like Boehners response that the president routinely violates the law and his oath of office so he has no standing to complain.

    Nancy Pelosi going to Syria was something far different than this.

  7. There seems to be a lot of evidence that John Kerry violated the Logan Act at the Viet Nam Paris Peace talks and now he is the Secretary of State.
    it seems this administrations’s adherence to this law is a selective.

  8. On the point of enforcement or punishment if Boehner has violated the law, the House of Representatives has a long history of punishing its members who break the law.

  9. This, from Article 1 Section 8. Ask yourself two things, 1) “Is the President an officer of the government?” 2) “Does this clause not explicitly state that Congress also shall have the same powers of his office if it so chooses?”

    “To make all laws which may be necessary and proper for carrying into Execution the foregoing Powers AND ALL OTHER POWERS vested by this Constitution in the Government of the United States, or in any Department OR OFFICER thereof”

  10. Mike K: the necessary and proper clause cannot control the President as such or there would be a built-in violation of the separation of powers. The President cannot simplistically be a mere “officer” within the meaning of cl. 18.
    Note, however, that it can reach any department (e.g., DOD, State).

  11. If you don’t believe me, you might believe two commentators with serious conservative cred, Mike Ramsey and David Bernstein (links at the bottom of the post), who think the invitation is unconstitutional.

    To be clear, I don’t think it’s unconstitutional. Boehner is not going to get prosecuted for anything (it is interesting how the Logan Act is now fading into complete obscurity where in the past it was at least waved around as a red flag). But it’s hard to deny that this isn’t something new. So it’s a nice demonstration of how the Constitution adapts to changing circumstances on the ground.

  12. Who knew that the administration had even a shred of respect for the Constitution?

  13. This breach of protocol as the Administration is taking to calling Boehner’s invitation – or something like it – should have been expected once the President began the post-election political season by announcing that the voters want both parties to work together and then days later unilaterally announcing a series of executive actions on immigration that poked the GOP in the eye. It is quite possible that the Congressional GOP conversations about this invitation fall somewhere in the realm of considering that in the scheme of things a ‘breach of protocol’ lies well below the gravity of a constitutional overstep that they seem to identify with the president’s actions on immigration.

  14. First of all, the notion that all issues of foreign relations are exclusively within the province of the Executive Branch is plainly wrong. The Constitution grants Congress the power to “To regulate Commerce with foreign Nations.” Seems pretty clear that foreign policy looms large in any exercise of that power. There are currently trade sanctions against several countries, including Cuba, and all were passed by Congress.

    Congress is currently considering a sanctions bill against Iran. That seems to me squarely within those Constitutional powers. I don’t think anyone would seriously argue that the sanctions bill, if passed (let’s say they overrode the President’s veto) would be unconstitutional.

    Of course, just because it is Constitutional does not mean it is good or wise policy. Congress presumably has the right to seek opinions of various experts on that question. Why does that not include the leader of a foreign country?

    What does “receive” mean in the grant of powers to the President to receive ambassadors? Does it mean that the President gets to decide whom the foreign representative (let’s say he is an ambassador, so clearly within the clause) gets to talk to? Is it illegal for members of Congress to talk to ambassadors and receive their opinions on issues of the day? Or does it have a narrower meaning — accept that an ambassador is the official channel for communication between sovereign countries.

  15. Response.As for the Logan Act, as quoted that requires the US Citizen to act “with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States . . .”

    The first part does not apply here – Boehner is not trying to influence Netanyahu, rather Netanyahu is trying to influence Congress.

    As for the second part, what “measures of the United States” is Boehner trying to defeat? And how would inviting Netanyahu to address Congress act to “defeat” those measures?

    (The second part seems to be addressed to situations where one lobbies a foreign government not to listen to the official US position but adopt a different policy or action that then interferes with US policy. Not the case here – N is lobbying B, not the other way around.)

  16. Netanyahu has addressed Congres twice before, in 2011 and 1996. And four other Israeli prime ministers have also addressed Congress over the past 35 years. Winston Churchill addressed Congress 3 times, also. Petro Poroshenko of Ukraine addressed Congress in 1914. Park Geun Hye of Republic of Korea addressed Congress in 2013. Lee Myung-bak of Republic of Korea addressed Congress in 2011. Julia Gillard of Australia addressed Congress in 2011. Felipe Calderón Hinojosa of Mexico addressed Congress in 2010. Angela Merkel of Germany addressed Congress in 2009. Gordon Brown of Great Britain addressed Congress in 2009. Bertie Ahern of Ireland addressed Congress in 2008. Nicolas Sarkozy of France addressed Congress in 2007.

    Shall I go on listing? There has been a world leader addressing Congress nearly every year since 1934. Unconstitutional? Laughable liberal Left having a temper tantrum.

  17. Oh, and how about Obama sending his campaign hit squad to Israel to interfere in Israeli election process? But, I suppose since Obama has committed voter fraud in U.S. he has no problem spreading his thuggery around the world. The Chicago way.

Trackbacks and Pingbacks

  1. […]  Is Boehner’s Netanyahu Invite Unconstitutional? (Opinio Juris) […]

  2. […] to address the U.S. Congress. If Congress does host the speech, would it be unconstitutional? Peter Spiro at Opinio Juris suggests that it would. I […]

  3. […] to address the U.S. Congress.  If Congress does host the speech, would it be unconstitutional?  Peter Spiro at Opinio Juris suggests that it would.  I […]

  4. […] Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional.  See also the posts by David Bernstein and Peter Spiro. […]

  5. […] consulting the White House. Peter Spiro, Michael Ramsey, and David Bernstein have each argued (here, here, and here) that this action intrudes upon executive power over diplomatic relations. For […]

  6. […] powers and intruding on the President’s general, residual authority over foreign affairs. 2 Adam White, another lawyer in FedSoc orbit of some repute (albeit less well-credentialed in this […]

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  8. […] Spiro, law professor at Temple University and first to pounce on the issue, looks also to the Logan Act, passed in 1799, which prohibits private U.S. citizens […]