America's Unwritten Constitution: The Precedents and Principles We Live By (52 page)

The text of the Executive Article’s list of specific presidential responsibilities can plausibly be stretched to cover the president’s powers of recognition and derecognition. In particular, the list declares that the president “shall receive Ambassadors and other public Ministers.”

But this patch of text can also be plausibly read far more modestly, as simply providing that foreign diplomats from regimes already recognized by the president and Congress (or alternatively, by the president and the Senate) should as a matter of official protocol and ceremony present their credentials to the president when they arrive on American soil. In
The Federalist
No. 69, Hamilton/Publius described the reception clause as a mere matter of etiquette and convenience, more about “dignity” than “authority”—a rule of minuscule consequence whose main effect would be to avoid the need to summon the legislature or some subpart thereof into special session whenever one diplomat replaced another from a previously recognized foreign regime.

Other language in the Executive Article can be read to suggest a rather
modest vision of presidential power in foreign affairs. Before dispatching an official ambassador to some foreign land, the president must ordinarily win the approval of the Senate: “He [the president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors.” If the president must typically induce the Senate when sending official American diplomats abroad, why may the president ignore the Senate when receiving official foreign diplomats at home? Additionally, the Executive Article provides that no treaty may take effect without a two-thirds Senate vote. If the Senate plays such a prominent role in the making of treaties, why can the Senate be shoved offstage in the breaking of treaties? Also, the written Constitution broadly empowers Congress as a whole to regulate “Commerce”—that is, affairs, transactions, and general intercourse—with “foreign Nations.” Why may the president act without congressional preapproval in conducting foreign affairs via diplomatic recognition or derecognition?

A structural argument on behalf of presidential power would emphasize that world events can move at lightning speed and that only the president might be in session when a critical decision must be made. (Unlike members of Congress, the president is always “in session.”) Thus, a president who needs to send an ambassador on an emergency mission need not wait for the Senate to convene, thanks to another provision of the Executive Article that explicitly authorizes unilateral “Recess” appointments for temporary periods. Textually, the power to recognize new foreign regimes and to break relations with defunct treaty partners can also be defended as part of the residual “executive Power” vested solely in the president.

Beyond these plausible structural and textual arguments, however, is the strongest legal argument of all: a powerful precedent set by a powerful president. When French revolutionaries seized power and guillotined King Louis XVI on President Washington’s watch, a momentous decision had to be made. America could opt to stand by the French monarchy, which had bankrolled the American Revolution and had signed treaties of amity and alliance with the United States in 1778. Alternatively, America could choose to recognize the French revolutionaries as the rightful government of France entitled to all the treaty rights of the prior regime. Or perhaps America could decide to stand aloof from all French factions in the bloody
maelstrom and declare that the old treaties were now entirely void. Under this view, the French revolutionary upstarts had no automatic entitlement to treaty concessions that America had granted only to its original treaty partner, Louis, and his designated successors (starting with his young son, the dauphin Louis XVII). The competing considerations—loyalty to a friendly monarchy, solidarity with fellow revolutionary democrats, and anxiety about being sucked into an increasingly violent vortex—tugged in different directions. A wrong choice could have dreadful consequences. Were the United States to back the losing contestants in the unfolding and unpredictable tumult, the ultimate winners might well seek vengeance against the perfidious Americans.

The crucial point is that after consulting his cabinet, George Washington made the fateful decision himself—in effect, transferring official American recognition from the fallen French monarchy to the reigning French revolutionaries. Far more than any word or phrase in the written text ratified in 1787–1788, this post-1789 precedent established the basic ground rules for all subsequent presidents—for example, Jimmy Carter in 1979—trying to decide whether and how America should cut diplomatic links with displaced sovereigns and/or create diplomatic ties to new regimes.

President Carter’s formal recognition of the People’s Republic of China came after President Nixon’s famous visit to mainland China in 1972, which in turn built on diplomatic foundations laid in 1971, when Nixon secretly sent his envoy Henry Kissinger to Beijing to parley with the Chinese Communists. In this diplomatic episode, we see a second basic feature of modern presidential power traceable back to the Washington administration, namely, the president’s unilateral power to communicate, even secretly, with foreign regimes and to negotiate treaties without the Senate’s foreknowledge.

Here, too, we can invoke various plausible textual and structural arguments to support presidential power, and here, too, there are plausible textual counterarguments. The matter has been settled beyond all doubt, less by the naked constitutional text than by the actual practice of presidents of all parties, with the repeated backing of Senates and Congresses when presidents have sought formal legal support for previously secret diplomatic initiatives.

Perhaps the most momentous episode occurred when President Jefferson quickly negotiated for the purchase of the Louisiana Territory as soon as this vast tract of land was unexpectedly plopped onto the bargaining table at Paris in the spring of 1803. Had Jefferson delayed negotiations in order to get detailed advice or preapproval from the Senate or House—neither of which was then in session—he would have run the risk that the mercurial Napoleon might change his mind and whisk the land off the table. Instead, Jefferson (via his handpicked diplomats, James Monroe and Robert Livingston) seized the day and closed the deal. When Congress convened in the fall, Jefferson won the support of both two-thirds of the Senate (which formally approved the treaty he had negotiated on his own initiative) and a majority of the House (which later voted, along with the Senate, to provide the legal structure for the new lands and to foot the bill).
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This near-doubling of the new nation’s landmass, one of the most spectacular diplomatic triumphs in modern world history, followed an established constitutional script. But the script was established less by the debatable text of the written Constitution than by the definitive gloss on that text that Washington had added in the early 1790s, via diplomatic initiatives culminating in the famous Jay Treaty. The process that led to this treaty began when Washington secretly sent an unofficial emissary (Gouverneur Morris) to Britain. Later, the president decided to follow up with a formal diplomatic overture. Although the Senate confirmed Washington’s choice of Envoy John Jay, senators did not preapprove the specifics of Jay’s official diplomatic mission. Instead, Jay followed Washington’s negotiating instructions. Only months after Jay and his English counterparts reached a tentative deal (in November 1794) was the treaty brought before American lawmakers. Eventually, both the Senate and the Congress as a whole endorsed Washington’s diplomatic entrepreneurialism—the Senate by approving the Jay Treaty by the requisite two-thirds in June 1795, and the Congress by enacting the necessary implementing legislation and appropriations the following year.
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A third and related piece of executive power also settled squarely into place as a result of Washington’s conduct in the Jay Treaty. After winning Senate approval for the treaty, Washington reserved the final legal move for
himself. In the end, he alone decided whether to officially ratify the treaty in the name of the nation. Only after he decided to proceed in the wake of the Senate’s yes vote did the treaty become legally binding. (Washington also needed to secure British agreement to a modification that the Senate had insisted upon as a condition of giving its advice and consent.) Although the Constitution’s text could be parsed different ways on the nice questions of treaty-making raised by the power-sharing between president and Senate, what is constitutionally decisive today is not the pure text, but the institutional gloss that Washington applied to it—a gloss that was accepted then and has been accepted ever since by his countrymen.
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A similar story can be told about Washington’s famous Neutrality Proclamation of 1793. When word reached America that France and England were officially at war, the Second Congress had just adjourned, and the Third Congress was not due to meet for several months. Washington quickly reviewed the treaties already on the books, consulted his cabinet, and then publicly announced his policy: America would steer a middle course between the belligerents and would not ally with either side. As Washington saw it, neither justice nor the strict language of existing treaties obliged America to join France’s international crusade, and America’s strategic interests counseled noninterference.

Washington’s proclamation carried legal weight. It was not purely an exercise of free expression akin to an Inaugural Address, a State of the Union Message, or a newspaper op-ed. Rather, Washington spoke in the name of the nation, officially proclaiming that no American citizen aiding any belligerent could properly claim to be acting with the approval of the United States. On the contrary, Washington sternly warned that Americans who ran contraband war supplies or otherwise gave military help to any of the warring parties risked being criminally prosecuted or sued civilly for violating international law and breaching the peace. Although Washington did not speak particularly about Congress’s constitutional role, nothing that he said denied congressional power to adopt a different policy by later statute if Congress so chose.

Here, then, was another major precedent. Much as the executive power encompassed authority to formally recognize or derecognize foreign regimes, to unilaterally and even secretly negotiate with these regimes, and
to formally ratify treaties with them, so, too, the executive power encompassed authority to construe existing treaties (and international law more generally) in the first instance and to declare formal American neutrality between warring nations. In all these respects, America’s presidents would officially propound America’s foreign policy and act as the constitutionally authorized organ of communication between America and the world.

ONE ASPECT OF THE NEUTRALITY PROCLAMATION,
however, has failed the test of time. Washington suggested that American citizens violating his neutrality policy would be immediately subject to federal prosecution. But the Supreme Court later made clear in a celebrated 1812 case,
United States v. Hudson & Goodwin
, that American presidents (and American judges, for that matter) lack authority to create federal criminal law unilaterally. This ruling accurately reflected the Constitution’s grand architecture, which guarantees that ordinarily no person can be convicted of a federal crime unless Congress first defines the crime (and determines the accompanying punishment) with suitable specificity and prospectivity.
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Textually, the Legislative Article explicitly authorizes Congress—not the president and not the judiciary—to “define and punish…Offenses against the Law of Nations.” In fact, Congress did just that in its Neutrality Act of 1794, which provided the proper legal authorization for the prosecution policy that Washington had prematurely announced in his 1793 proclamation. Thus, the justices got it just right in 1812 when they insisted that “[t]he legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.”
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In this landmark Marshall Court ruling, we see the proper limits of America’s unwritten Constitution. Where the text and structure of the written document are clear, the written Constitution trumps the unwritten Constitution—even where George Washington is concerned.

IN ALL THE WASHINGTON ADMINISTRATION EPISODES
just canvassed, the president relied heavily on the advice of an inner circle of top
executive-branch officials. This heavy reliance bids us take a hard look at the president’s “cabinet”—a word that nowhere appears in the text of the written Constitution as ratified in 1787–1788, but an entity that has played an important role in America’s actual institutional system from 1789 to the present.

Cabinet members are the president’s subordinates, and have been so ever since the days of Washington. America’s first president leaned on his cabinet precisely because he had reason to trust these confidants. He himself had handpicked this team, per the Constitution’s explicit appointments rules. These powerful lieutenants answered directly to him under the Article II opinions clause, which encouraged presidents to require reports from the “principal Officer”—elsewhere described as the “Head[]”—of each executive department. Crucially, these men served at Washington’s pleasure; he had the unilateral power to dismiss them at any time for any reason, and he was willing to wield this power. In 1795, within days of receiving intelligence raising grave doubts about the ethical and political fitness of his second secretary of state, Edmund Randolph (whom he had appointed to replace Jefferson), Washington unceremoniously muscled Randolph out of office, who resigned to avoid being fired.
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