Legislative diplomacy.

• Author: Scoville, Ryan M.
• Position: II. Executive Power as a Limiting Principle A. Textual Dimensions 3. Exclusivity through Conclusion, with footnotes and tables, p. 364-395

3. Exclusivity

   The final dimension of the diplomacy power concerns the exclusivity of its residence in the executive branch. Because diplomatic functions are exclusive only to the extent allocated in Article II, the analysis here is derivative of the above conclusions on functional breadth and capacity. In short, the president possesses an exclusive power to execute various diplomatic functions on behalf of the United States, but nothing more. As explained in Part III below, Article I of the Constitution confirms the incompleteness of Article II power, and thus the absence of executive exclusivity in foreign relations, by allocating certain diplomacy powers to Congress.

   2. Original Meaning

   Historical sources are consistent with the view that executive power is functionally broad and suggest that the Framers understood the president as holding exclusive power to engage in sovereign diplomacy. (180) These relatively unremarkable observations, however, leave unresolved whether the original meaning of Article II is at odds with international communications by Congress. The following discussion answers this question based on an analysis of preconstitutional practice, records from the Constitutional Convention and ratification debates, and official practice during the Washington Administration. These sources generally suggest that the Framers understood Article II to allow subsovereign diplomacy by Congress and its members.

1. Concerns About Institutional Capacity

   Practical considerations animated the Framers' approach to allocating diplomacy power. Records from the Constitutional Convention and state ratification debates document that the Framers generally opposed the idea of granting sovereign communicative powers to Congress on the view that Congress's institutional features would render it incapable of conducting foreign relations. This view rested heavily on the states' experience under the Articles of Confederation, which had assigned legislative and executive functions--including the conduct of diplomacy--to Congress. (181) Originally, the Congress of the Confederation appointed diplomats and chose the locations and durations of their service. (182) It received ambassadors from overseas. (183) It instructed diplomats on the actions and policies they were to pursue, (184) dispatched official correspondence to foreign ministers and sovereigns, (185) and received correspondence from the same. (186) Individual delegates to Congress also communicated with foreign officials. (187)

   Simply put, this arrangement proved unworkable. For one, it caused significant delays. Internal political divisions, quorum rules, lengthy recesses, and delegates' preoccupations with other responsibilities frequently slowed or prevented altogether the transmission of time-sensitive diplomatic instructions and responses. (188) Delays in turn complicated foreign relations. (189) Another issue was Congress's inability to maintain secrecy. Legislative control often necessitated the exposure of sensitive information to the delegates, but with roughly fifty delegates (190) and their accompanying differences of opinion, leaks were a problem. (191) In April 1787, just a few weeks before the Constitutional Convention, John Jay lamented to Thomas Jefferson that Congress's lack of secrecy imposed "a great restraint" on the efforts of American diplomats to collect intelligence abroad. (192)

   Those who drafted the Constitution and debated its ratification appear to have been aware of these difficulties. As early as 1776, Benjamin Franklin had expressed a belief that large legislative bodies were unable to maintain secrecy. (193) The Congress of the Confederation created the Department of Foreign Affairs in 1781 for the purpose of providing a "remedy against the fluctuation, the delay and indecision" that afflicted American foreign relations under the Second Continental Congress. (194) And over two-thirds of those who attended the Constitutional Convention had been either diplomats overseas or delegates to the Congress or one of its predecessors. (195) In those roles, they witnessed firsthand the complications of legislative management.

   Evidence from the Constitutional Convention suggests, moreover, that the experience under the Articles influenced the Constitution's drafting. Notably, no delegate argued that Congress as a whole, or the House in particular, should be responsible for communicating with foreign governments, even though congressional control had been the longstanding arrangement up to that point. The delegates overwhelmingly opposed House involvement even in ratifying treaties on the view that its members would, like delegates to the Congress of the Confederation, have a hard time maintaining secrecy. (196) The story is more complicated for the Senate but is ultimately consistent: For much of the Convention, a number of delegates advocated that the Senate hold primary authority to conduct foreign relations. (197) In the end, however, the drafters shifted to the executive the clauses on which the Senate's diplomacy power would have relied, (198) and after that shift, no one suggested that the Senate would retain any sovereign communicative powers.

   Evidence from the ratification debates is similar. In The Federalist, for example, Alexander Hamilton expanded the practical critique of legislative control: entrusting the Senate with treaty negotiations "would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations," for "the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representative of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy." (199) House participation would also have been problematic:

   The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and dispatch, are imcompatible with the genius of a body so variable and so numerous. (200) Statements suggesting Senate involvement in international negotiations were not entirely absent, (201) but a clear majority of those with recorded statements on the issue shared Hamilton's views. (202)

   This evidence aligns with the text of Article II insofar as it illuminates the rationale for allocating sovereign diplomacy power to the president. But the harder question is whether the evidence also demonstrates an original understanding against subsovereign diplomacy by Congress. Because no one directly addressed the issue at the Constitutional Convention or ratification debates, only inferences are possible, and the strength of the inference against legislative diplomacy will depend on the extent to which subsovereign communications by Congress give rise to the practical problems the Framers sought to avoid. If the communications are generally unproblematic, then there is less reason to believe that they would have troubled the Framers, and the originalist argument for prohibiting such communications becomes weaker.

   Consider, then, the original practical concerns. The concern about speed and secrecy was that the size of a deliberative body corresponds negatively with its ability to decide quickly on proposed courses of action and to maintain the secrecy of sensitive information--more participants would cause more delays and increase the risk of leaks. (203) On the issue of respect, the concern was that a diplomatic agent of Congress would fail to garner the esteem of foreign counterparts because he would lack the stature of a head of state, such as a king or president, and that the agent might, therefore, be less effective in promoting U.S. interests abroad. (204) The interest-based concerns, in turn, reflected an understanding of the unique incentives the Constitution would impose on federal legislators. In establishing district- and state-based elections, Article I would give members of the House and Senate incentives to pursue the parochial interests of their constituents rather than those of the country as a whole and thus create a risk of conflicting communications among members whose constituents had divergent positions on foreign affairs. (205) And for members of the House, constitutionally mandated term limits would provide a strong incentive to seek short-term results even when long-term solutions might be preferable. (206) Those limits would also make it difficult to acquire an adequate knowledge of foreign affairs. (207)

   Both the risk and magnitude of these problems are diminished, however, if Congress or its members conduct diplomacy only on their own behalf. Delays in legislative communications are far less problematic if the president alone negotiates treaties and otherwise transacts with foreign governments, leaving to Congress the business of communication for the purpose of investigating or lobbying, as documented in the contemporary evidence. (208) The same is true of leaks: because subsovereign communications are nontransactional and often concern issues that do not rise to the level of national importance, the harm of disclosing transmitted information will tend to be more limited. Further, lack of respect among foreign governments for agents of Congress is not a problem as long as the Constitution gives sovereign diplomacy power to a singular head of state, who can use the stature of his office effectively to pursue U.S. interests abroad. Similarly, parochial and short-term interests are less problematic if legislators cannot act on them in treaty negotiations or other international transactions.

   In short, legislative...