Constitution Check: Did the House act illegally in inviting Netanyahu?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains arguments about a constitutional precedent being set by the House’s invitation to Israel’s Prime Minister, Benjamin Netanyahu.

Kerry_Netanyahu460THE STATEMENTS AT ISSUE:

“U.S. congressional leaders probably should have given this invitation more thought. Although not a violation of the letter of the Constitution, it certainly seems to violate the idea that the nation speaks with one voice on foreign policy and that foreign leaders cannot choose whether they prefer to deal with Congress or the president.”

– Robert Kagan, senior fellow at the Brookings Institution in Washington, D.C., in a column in the Washington Post on January 30, discussing House Speaker John Boehner’s invitation to Israeli Prime Minister Benjamin Netanyahu to address a joint session of Congress on the issue of U.S.-Iran negotiations over nuclear weaponry. The speech will occur Tuesday morning.

“Congress can make this decision on its own. I don’t believe I’m poking anyone in the eye. There is a serious threat that exists in the world…The fact is that there needs to be a more serious conversation in America about how serious the threat is from radical Islamic jihadists and the threat posed by Iran.”

– House Speaker John Boehner, in a meeting with news reporters on January 21, explaining his decision to invite the Israeli government leader to address Congress. The White House was not told in advance of the invitation and its acceptance by the Prime Minister.

WE CHECKED THE CONSTITUTION, AND…

A constitutional tradition that runs back to George Washington has always placed the nation’s President in the preeminent position to conduct foreign policy without interference or embarrassment from any source – including Congress.   President Washington started that tradition by flatly refusing a demand by the House of Representatives to turn over the secret papers about the negotiations with Britain of the “Jay Treaty,” ending the hostility that had lingered since American independence.

John Marshall, as a member of the House in 1800 (before he became the nation’s Chief Justice), made a bold comment that has reverberated down through the nation’s history since: “The President is the sole organ of the nation in external relations, and its sole representative with foreign nations.”

In one of the Supreme Court’s strongest endorsements of that very idea, the Justices – with only one dissent – declared in 1936 that the centrality of the presidency in the nation’s foreign relations actually predated the Constitution, and when America became independent, the national government inherited the power that the English kings had over their American colonies’ dealings with other nations. With the new Constitution, the court said, that authority was lodged in the presidency.

That ruling, in the case of U.S. v. Curtiss-Wright Export Corporation, has never been abandoned by the Court even though some of the language in the opinion has disturbing overtones of an imperial presidency.

That decision serves as a backdrop for the discussion that America has been having in recent weeks about the move by the House to play an independent role in influencing U.S. talks with the government of Iran over that Mideast nation’s potential as a nuclear-armed menace in the region.

The invitation by House Speaker John Boehner to Israel’s Prime Minister, Benjamin Netanyahu, to address a joint session of Congress did not arise in a political or diplomatic vacuum. Many Republicans in Congress have been strongly critical of President Obama’s dealings with terrorism in the Middle East, and, in particular, of the negotiations with Iran over a potential deal to restrain its development of nuclear weapons. And Prime Minister Netanyahu has been especially vocal in denouncing that prospect as a “bad deal” that deeply threatens Israel’s very existence.

Indeed, even as Netanyahu makes his address on Capitol Hill, U.S. Secretary of State John Kerry will be at a meeting in Switzerland to continue the discussions over this issue.

If it were simply a matter of encouraging further debate in America over those negotiations, and over the larger question of U.S. responses to terrorism, as Speaker Boehner insisted when he announced the invitation last month, the event might not have constitutional implications.

But it is clear that the critical substance of what Netanyahu planned to say to Congress would serve as an explicit counterpoint to U.S. diplomatic efforts. The Israeli government leader might have had political motives for accepting the invitation (he is standing for reelection in March), but no one doubts that he primarily had a foreign policy objective in mind, to head off any nuclear arrangements with Iran by any Western power.

From the front of the House chamber, the foreign government leader will be confronting President Obama and the Executive Branch in what appears to be an unprecedented fashion. That spot is, in this instance, not neutral ground: it is a forum for explicit diplomatic maneuvering directly contrary to a current Executive initiative. And it was arranged without any advance notice to the White House or to the State Department.

In the Supreme Court’s decision in the Curtiss Wright case some eight decades ago, it spoke of the constitutional hazards of “embarrassment, perhaps serious embarrassment,” in the President’s conduct of foreign relations. The president, “not Congress,” the court said, “has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in times of war.”

After saying that, it turned immediately to President Washington’s rebuff of Congress over the Jay Treaty, and quoted from his remark about the “pernicious effect on future negotiations,” and “perhaps danger and mischief in relation to other powers,” from the House of Representatives’ demand.

Since the announcement of the invitation to Netanyahu in January, much has been said about the risks of a rupture in the relationship between the United States and Israel. Whatever may be said further about that, a constitutional precedent is being set in the House chamber that could lead to a rupture in how the two elected branches of the national government deal with the most sensitive of issues over global security.

It is not an exaggeration to suggest that this unusual invitation, given the particular circumstances in which it arose, is a sign of a new power struggle over the management of America’s foreign policy, just in time to become a central question for next year’s presidential and congressional elections. That will be as much a constitutional debate as it will be a political debate.

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