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Ramsey and Tillman on the Receive Ambassadors Clause

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.

Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”

Seth argues for a strict reading of ambassador and public minister.  He argues that Netanyahu is neither an ambassador nor a public minister.  An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’”  He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers.  See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power).  See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power).  As a reading of the language, Seth’s argument here is quite plausible.

Mike contends for a broader reading of “other public minister.”  To support this, he writes that “the alternative would be a strange result: that the President would receive the Israeli ambassador, but not Israel’s head of government.”  What type of argument is this strange result claim?  One might interpret it as a purpose argument – the purpose of the Clause is to have the President receive representatives of foreign governments and the head of the government is the chief representative.

Is this a legitimate use of a purpose argument for a textualist?  In my view, so long as one reads “other public minister” as ambiguous – as having this as one of its meanings – then it is legitimate.  Even if Seth’s proposed meaning is the stronger reading of the language (without reference to the purpose), this purpose argument might shift the result toward’s Mike’s reading so long as one concludes this purpose argument is sufficiently strong.

Is this language ambiguous?  One can imagine Seth denying it is.  The language sets forth ambassadors and then includes “other public ministers” as similar but lesser officials.  But Mike might reply that the reason ambassador is singled out is because it was the most common representative, not that it was the highest representative.

Reader Discussion

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on January 27, 2015 at 16:34:55 pm

Shouldn't the focus be on the term "receive?" Does this term have a diplomatic connotation such as receiving the credentials of a foreign representative who would then represent that country's interests in the United States? In other words, to be recognized by the United States government, the ambassador or minister would first have to stop at the White House? After that, the foreign official is free to move around and, say, go speak to Congress?

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Greg Bedell
on January 28, 2015 at 06:45:51 am

[…] Ramsey and Tillman on the Receive Ambassadors Clause […]

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Of Public Sector Millionaires - Freedom's Floodgates
on January 28, 2015 at 11:22:13 am

That is exactly what I was thinking. What does "receive" mean? 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.

Congress is currently considering a sanctions bill against Iran. That seems to me squarely within its Constitutional powers to "To regulate Commerce with foreign Nations." 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, especially one much closer to Iran and whose country has been threatened by Iran?

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Tal Benschar
on January 28, 2015 at 20:30:31 pm

Hmmm ...

I assumed that the President's reception of ambassadors, etc. had more to do with the meaning of communications. If I met with Netanyahu and we came to an agreement on an international matter and he and I signed the agreement, it would have no meaning. Likewise any meaningful public communications representing the US would have little meaning if it came from myself, but it would have meaning if coming from the President.

The President is the head of state and his word has binding power in international agreements. Likewise, messages from ambassadors given to me are not given to the US. Messages given to the President are considered given to the US.

Kind of like in the Declaration of Independence. Many of the complaints listed in the Declaration originated with Parliament, not King George. But King George was the official head of state, so, to be proper, the Declaration addressed the complaints at the King, not Parliament.

The request to speak to Congress is unusual, but as far as official roles and actions goes it has no more meaning than if I invited Netanyahu to my house for dinner so we could talk about relations. If Congress wants to invite me to come have a little chat with them, they may do so.

At least, that's my take on it.

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Scott Amorian
on January 28, 2015 at 21:17:36 pm

Scott:

I wish the Congress would invite you - perhaps you could drum some sense into their befuddled heads.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.