Legislative diplomacy.

• Author: Scoville, Ryan M.
• Position: Introduction through II. Executive Power as a Limiting Principle A. Textual Dimensions 2. Capcity, p. 331-363

A traditional view in legal scholarship holds that the U.S. Constitution assigns the president exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its members routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign parliaments. And individual members of the House and Senate frequently travel overseas on congressional delegations ("CODELs") to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the president. Moreover, many of these activities have occurred ever since the Founding. Together, they comprise an understudied field of legislative diplomacy. This Article has two purposes: The first is to use State Department cables from WikiLeaks, a recent compilation of public reports, and original historical sources to provide a uniquely detailed, descriptive account of legislative diplomacy. The second is to develop theories about the practice's constitutionality. Text, original meaning, and customary practice suggest that the separation of diplomacy powers is more complicated than commonly assumed and that those powers do not belong exclusively to the president. The analysis undermines the "sole organ" metaphor, serves as a counterpoint to the widely held view that authority over foreign affairs belongs overwhelmingly to the executive, and carries practical implications for the execution of U.S. foreign relations.

TABLE OF CONTENTS INTRODUCTION I. MODERN PRACTICE A. Contemporary Evidence 1. Foreign Travel 2. Domestic Contacts B. Antecedents II. EXECUTIVE POWER AS A LIMITING PRINCIPLE A. Textual Dimensions 1. Functional Breadth 2. Capacity 3. Exclusivity B. Original Meaning 1. Concerns About Institutional Capacity 2. Practice of Members of Congress 3. Practice of Congress C. Executive Delegation III. LEGISLATIVE DIPLOMACY POWERS A. Theories Based on the Enumerated Powers Doctrine 1. Express Power: War Declarations 2. Implied Power: Extraterritorial Investigations B. Limits on the Enumerated Powers Doctrine C. Beyond Enumerated Powers CONCLUSION INTRODUCTION

In the midst of various disagreements over the allocation of foreign affairs powers between the president and Congress, there is unanimous agreement on at least one point: the president holds an exclusive power to carry on official diplomatic communications with foreign governments. As Louis Henkin explained, "From the beginning, the President has been the organ of communication with foreign governments and has had control of the principal channels of information--making the President the voice as well as the eyes and ears of the United States." (1) The extent of the academic consensus on this point is impressive. It is longstanding. (2) It reflects the conclusions of a significant number of scholars. (3) And it draws support even from those who generally oppose claims of broad executive power in foreign affairs. (4) To put it simply, "Everyone agrees that the President has the exclusive power of official communication with foreign governments." (5) Indeed, according to Edward Corwin, "[T]here is no more securely established principle of constitutional practice than the exclusive right of the President to be the nation's intermediary in its dealings with other nations." (6) The literature thus creates the impression of an unassailable constitutional principle. I call this the diplomacy power orthodoxy.

Expressions of the orthodoxy locate the president's power in any of several clauses of Article II (7) and claim the support of original meaning. (8) The accepted understanding is that the Founders viewed an exclusively executive diplomacy power as necessary for the United States to respond quickly to international events, preserve secrecy, speak with a single voice, and negotiate from a position of strength. (9) Underlying this view is a concern that nonexecutive diplomacy powers, much like an independent foreign policy power for states, would introduce multifarious and even conflicting voices into the conduct of foreign affairs.

The orthodoxy, however, is both imprecise and incomplete--imprecise in that it tends to overstate the breadth of executive power, and incomplete in that it neglects the possibility of legislative power. Far from absent, international diplomacy by Congress is longstanding, frequent, and widespread. In most cases, federal statutes facilitate the practice. (10) Legislators travel abroad to investigate conditions in other countries, lobby foreign governments, negotiate agreements, speak on behalf of the president and the U.S. government, and even oppose executive policies. (11) For its part, Congress receives foreign delegations, maintains official contacts with foreign parliaments, and supports the international travel of its members. (12) Together, these practices comprise an understudied domain of legislative diplomacy.

Details about legislative diplomacy have long evaded scrutiny. The State Department and members of Congress keep most of the communications nonpublic. (13) Statutory reporting requirements are minimal. (14) News coverage is sporadic. Legislators, moreover, may have political incentives to be less than candid about the substance or even occurrence of their contacts with foreign leaders. As a result, the practice is a poorly understood mode of U.S. engagement with the world.

WikiLeaks, however, has presented an unprecedented opportunity to evaluate this practice. In 2010 and 2011, the organization released to the public approximately 250,000 State Department cables, many of which provide extensive and often verbatim descriptions of communications between U.S. legislators and foreign officials. (15) These cables make it possible to examine the practice of legislative diplomacy in more detail than ever before. Together with other sources, such as federal travel reports, they help illuminate the total volume of the practice, its purposes, the destination countries, the senators and representatives involved, and the leaders with whom they meet. (16)

These details challenge the prevailing sense that diplomacy is an executive prerogative and call for a more nuanced account of the separation of powers. Under the orthodoxy's influence, most legal analyses have treated the president's monopoly over official communication as a given, rather than as a point of criticism or elaboration, and the diplomacy power itself as doctrinally untextured. Few scholars have acknowledged that legislative diplomacy occurs, and none have addressed the extent of its constitutionality. One resulting problem is theoretical: the gap between theory and practice means either that Congress systematically violates the separation of powers or that the orthodoxy is incorrect--or, at the very least, incomplete. A second problem is practical: lacking a theoretical foundation, legislative diplomacy occurs in a constitutional void that imposes no principled limits on the conduct of members of the House and Senate and offers no guidance on the extent to which planned communications are permissible. A theory about the diplomacy powers of Congress would help alleviate these problems.

In developing this theory, I rely on several key terms. "Diplomacy" denotes any act of communication with a foreign government by a U.S. government institution or official. (17) Under this general definition are categories that differ based on the branch of the federal government that is involved, the capacity in which the communicator speaks, and the communicative purpose: "Legislative diplomacy" is diplomacy by Congress or one of its members, while "executive diplomacy" is diplomacy by an executive agency or official; "sovereign diplomacy" is diplomacy on behalf of the United States, while "subsovereign diplomacy" is on behalf of any component of the U.S. government, such as Congress; and "investigatory diplomacy" is diplomacy carried out for the purpose of collecting information, while "noninvestigatory diplomacy" is for any other purpose, such as lobbying foreign governments. Permutations of these categories yield a matrix of practices. For example, a member of Congress who speaks with a foreign official on behalf of Congress for an investigatory purpose engages in investigatory, subsovereign, legislative diplomacy. This categorization scheme will facilitate the constitutional analysis that follows.

This Article proceeds in three parts. Part I reveals the results of a thorough investigation into the nature and extent of modern legislative diplomacy. A comprehensive review of WikiLeaks cables describing diplomacy conducted by members of the 111th Congress in 2009 shows that individual legislators participate for a variety of reasons--ranging from fact-finding to representing constituents--and that the practice is a systemic feature of U.S. engagement with other countries. For example, in 2009 alone, members of the House and Senate took over 2,000 official trips abroad and, in doing so, visited at least 117 foreign countries and met with numerous foreign leaders. Lobbyist reports and other primary sources also show extensive contact between foreign governments and Congress.

Part II theorizes about the constitutionality of legislative diplomacy by evaluating the orthodoxy's foundations in the text and original meaning of Article II. The claim here is simple: the contours of the executive diplomacy power leave room for a legislative counterpart in at least one sense, and possibly a second as well. First, in granting the president the power to communicate on behalf of the United States, Article II leaves open the possibility that individual legislators and Congress can communicate with foreign officials in a subsovereign capacity. Canonical indicia of original meaning confirm as much. For example, members of the first Congress frequently...