The press has blown a gasket the past few days crowing about the breach of protocol related to Benjamin Netanyahu’s address to Congress. The charge, and it’s not without merit, is that “Ambassadors and other public ministers” must be received by the president, as stated in Article Two, Section Three of the Constitution. As head of state, the argument goes, it’s the president’s right to meet with other heads of state. By inviting Netanyahu to speak and bypassing the White House, critics contend that Speaker Boehner ignored the Constitution.
The Constitution is rather vague on this issue. The language of the relevant section states that presidents “shall receive ambassadors and other public ministers.” In the context of how Article Two is framed, Section Three lists what might be considered duties of the president rather than prerogatives (which are dealt with in the previous section). In this sense, while protocol may have been violated by not clearing Netanyahu’s visit with the White House, the refusal of the president to meet with the head of a foreign nation could also be construed as a violation of constitutional duty. As read, the president is required in his symbolic capacity as our leader to meet with foreign heads of state. He might refuse, but such action can only be interpreted as a diplomatic statement, and an antagonistic one at that.
As much as we look to the president as our Commander-in-Chief in foreign affairs, the Founder’s didn’t preclude Congress from involvement in foreign policy. The president is required by the Constitution to seek Senate approval for treaties, and the power to declare war is a Congressional power. In fact, the power to receive foreign dignitaries was originally vested with the legislature under our first constitution, the Articles of Confederation. It was moved to the executive branch largely out of a sense of efficiency, it being much easier to organize a meeting between two people rather than a meeting of a large body. Hamilton, in Federalist #69, calls the move a matter of convenience more than anything else, and the entire protocol for such receptions more a demonstration of “dignity than authority.”
Nonetheless, Boehner’s actions are unprecedented, and the breach of etiquette has created an opportunity for those who treat the Constitution lightly to harangue those who take it seriously. The Obama administration is not known for its reverence of constitutionalism and the rule of law. President Obama’s past remarks regarding the burden of separation of powers, his extensive use of executive orders, and his growing use of executive agreements to bypass the legislative branch have clearly struck a nerve with Congressional Republicans. Only a few days back, the White House said it will not seek Congressional approval of its nuclear deal with Iran. When pressed by a reporter as to why not, the White House responded that “we can’t put in place an additional hurdle for that agreement to overcome here at the 11th hour.” In essence, following the Constitutional process is just too much trouble.
Politics doesn’t happen in a vacuum. Congressional Republicans have come to the point where they’ve grown tired of what they see as blatant dismissal of the rule of law by the president. The impact of inviting a foreign head of state to address Congress without presidential approval was intentional. Congress was trying to send a message.
Boehner has a phone and a pen as well, and he’s willing to use them.