The Ambassadors Clause

[The President] shall receive Ambassadors and other public Ministers. . . .

—Christopher T. Landau & Chase T. Harrington

Introduction

The Ambassadors Clause, also known as the Reception Clause, tasks the President with receiving other nations’ foreign diplomats. As an original matter, reception appears to entail the ministerial duty under customary international law of receiving foreign diplomatic envoys. During the twentieth century, however, the reception power morphed into a substantive prerogative, and it is now the principal constitutional footing for the President’s unilateral and unreviewable power to recognize foreign governments.

History Before 1787

Since ancient times, international law has provided a specific means for the formal initiation of an envoy’s diplomatic service: The envoy presents a letter of credence from the head of state of his or her country to the head of state of the host country.¹ Such a letter generally vouches for the envoy’s bona fides (credentials) and asks the host government to give credence to the envoy’s authority to speak on behalf of his or her government.²

After the United States declared independence, it was widely understood and accepted that the responsibility of receiving foreign envoys rested with the national government, not the states. In August 1778, the Second Continental Congress received French diplomat Conrad Alexandre Gérard de Rayneval, the first accredited minister to the United States from a foreign nation.³ The following year, Congress received Gérard’s successor, Anne-César de La Luzerne.⁴

Congress’s power to receive foreign ministers was formalized by the Articles of Confederation, ratified in 1781. Under the Articles, “The united states, in congress assembled, shall have the sole and exclusive right and power . . . of . . . receiving ambassadors.”⁵ The states also ceded their unilateral sovereign power to receive foreign envoys: “No State, without the Consent of the united States, in congress assembled, shall . . . receive any embassy from, or enter into any conference, agreement, alliance, or treaty, with any King prince or state.”⁶ During this period, as before, foreign envoys would present their credentials to Congress, and Congress would authorize state governments to interact with these ministers as necessary.⁷

The Constitutional Convention

During the Constitutional Convention, it was similarly understood and accepted that the job of receiving foreign diplomatic envoys should be transferred from Congress to the new national executive. On August 6, 1787, the Committee of Detail’s draft charged the national executive with receiving foreign diplomatic envoys.⁸ That draft provided that the Executive “shall receive Ambassadors, and may correspond with the supreme Executives of the several States.”⁹

On August 25, without debate, the phrase “and other public ministers” was added after “Ambassadors.” This change presumably recognized that some foreign diplomatic envoys would not hold the rank of ambassador. The delegates also struck the power to correspond with state executives, or governors, as unnecessary.¹⁰ The clause was not the subject of any recorded discussion at the Convention and was ultimately located in Article II, Section 3, Clause 1 in a list of the President’s duties.¹¹

The Ratification Debates

In Federalist No. 69, Alexander Hamilton characterized the Reception Clause as a purely ceremonial power. This provision was “more a matter of dignity than authority,” he wrote, “without consequence in the administration of the government.” It was “far more convenient” for foreign envoys to present their credentials to the President than to “conven[e] the legislature, or one of its branches, upon every arrival of a foreign minister. . . .”

Although Hamilton asserted that the clause “ha[d] been a rich theme of declamation,” it does not appear to have been controversial during the ratification debates and was not challenged by the Anti-Federalists.¹² In fact, what appears to be the sole recorded mention of the clause during the state ratification debates was by the Federalist Archibald Maclaine at the North Carolina Convention, who echoed Hamilton’s view. He thought it was more practical to give this responsibility to the President, who “is perpetually acting for the public,” as opposed to Congress, which was frequently not in session.¹³

Early Practice

Hamilton’s characterization of the clause as purely ceremonial would soon prove to be inaccurate. Starting in 1789, the French Revolution forced the new federal government to address a number of novel questions, including whether to recognize the new revolutionary government in France and how to determine the status of treaties with the former royal regime.¹⁴ Controversy arose as to whether the power to answer these questions rested with Congress or the President. Hamilton (writing under the pseudonym “Pacificus”) took the position that such power belonged to the President, partly because of the “right of the Executive to receive ambassadors and other public ministers.” This power, he explained, “includes that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers are competent organs of the National Will and ought to [be] recognised or not.” And in cases when the United States has previously entered a treaty with a foreign country, the discretion to receive ambassadors “involves the power of giving operation or not to such treaty.”¹⁵

James Madison (writing under the pseudonym “Helvidius”) disagreed. He asserted that the Reception Clause intended “little if any thing more” than providing for “the ceremony of admitting public Ministers.”¹⁶ Here, Madison advanced the ministerial understanding of the clause that Hamilton had articulated in the Federalist Papers. According to Madison, “a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public Minister.” Rather, the power to recognize foreign governments and determine the status of treaty obligations, like the power to declare war, rested in Congress.¹⁷

As a historical and practical matter, Hamilton’s view prevailed. President Washington received the diplomatic envoy of the revolutionary French government, Citizen Genêt, and thereby recognized that government.¹⁸ The Washington Administration did not consult with Congress, and Congress did not object.¹⁹ Moreover, Washington’s Proclamation of Neutrality had the effect of nullifying the Treaty of Alliance signed by the Continental Congress and the deposed King Louis XVI of France.

Early Commentary

Early commentators agreed with Hamilton that the President’s power to receive ambassadors from foreign governments necessarily included the power to recognize the government sending the ambassador and the power not to recognize that government (by refusing to receive the putative ambassador). These commentators, however, left open the possibility that Congress might override such recognition decisions. Thus, Justice Joseph Story wrote that “[i]f the executive receives an ambassador . . . it is an acknowledgment of the sovereign authority de facto of such new nation, or party. If such recognition is made, it is conclusive upon the nation, unless indeed it can be reversed by an act of congress repudiating it.”²⁰ Story cautioned, however, that Congress’s authority to challenge a President’s recognition decision was an “abstract statement[]” that was “still open to discussion.”²¹

William Rawle went somewhat further in his treatise on the Constitution. He declared that Congress could override the President on the recognition of foreign governments if it chose to exercise that power. The power to receive foreign ambassadors, Rawles observed, includes “the right of judging . . . whether the new rulers ought to be recognised” after a revolution. Rawles contended that “[t]he legislature indeed possesses a superior power, and may declare its dissent from the executive recognition or refusal,” but “until that sense [of Congress] is declared, the act of the executive is binding.”²²

Judicial Precedent

United States v. Palmer (1818) dodged the question of whether Congress had any legitimate role in a recognition decision.²³ In dicta, the U.S. Supreme Court observed that “the courts of the Union must view . . . [a] newly constituted government” following a civil war “as it is viewed by the legislative and executive departments of the government of the United States.”

Once the Reception Clause is interpreted to give the President an implicit “recognition power,” a question arises about the scope of that substantive power. United States v. Belmont (1937) and United States v. Pink (1942) held that the Reception Clause grants the executive branch the power to settle the claims of United States citizens against a foreign government, at least insofar as such claims are settled in the context of recognizing that government.²⁴ Both cases arose in the wake of President Franklin D. Roosevelt’s 1933 recognition of the government of the Soviet Union. As part of that recognition and the subsequent exchange of ambassadors, the so-called Litvinov Assignment between the two nations settled the claims of United States nationals against the Soviet Union. Pink held that the recognition power “is not limited to a determination of the government to be recognized” and “includes the power to determine the policy which is to govern the question of recognition,” including conditions on recognition.²⁵ The President’s recognition power necessarily included the power to enter into that agreement.²⁶

The Court has held that the implicit executive recognition power provides exclusive authority to establish United States policy regarding a foreign nation’s territorial boundaries. Zivotofsky v. Kerry (2015) involved the constitutionality of a 2002 statute that required the President to list Israel as the place of birth of a United States citizen born in the city of Jerusalem.²⁷ The Court held that the law unconstitutionally infringed on the President’s recognition power, based in part on the Reception Clause. Both Justice Clarence Thomas’s concurrence and Chief Justice John Roberts’ dissent pointed out that reception of an ambassador is not generally understood under international law to encompass a recognition of the territorial claims of the foreign government sending that ambassador. For example, the United States has long recognized Argentina and exchanged ambassadors with that nation’s government without recognizing that nation’s claims over the Falkland Islands. After Zivotofsky, the Reception Clause is now deemed a source of exclusive executive power to recognize (or not recognize) a foreign government’s claims to particular territory—an issue far removed from receiving an ambassador.

Open Questions

• As an original matter, who had the better of the argument between Pacificus (Hamilton) and Helvidius (Madison) over the question of whether the Reception Clause gives the President any substantive power, such as the power to determine which foreign governments to recognize? Even assuming that Hamilton had the better of that argument, does it follow that Congress lacks any power over recognition of foreign governments?
• Assuming the current interpretation of the President’s recognition power is sound, how far does that power extend? Would Belmont and Pink have been decided the same way if Congress had purported to preserve the claims of U.S. citizens against the Soviet Union?
• Who had the better of the dispute in Zivotofsky on whether the recognition power extends to the boundaries of foreign countries—the Justices in the majority or the Chief Justice and Justice Thomas? Does the power to recognize foreign governments have anything to do with the power to take a position on territorial claims asserted by those governments?

1. Hugo Grotius, The Rights of War and Peace 379 (Jean Barbeyrac ed., 1738); E. de Vattel, The Law of Nations, Bk. IV, §§ 55–68 (1758). ↩︎
2. Vattel, supra at § 76. ↩︎
3. 11 J. Cont. Cong. 752–57 (Aug. 5 & 6, 1778). ↩︎
4. 15 J. Cont. Cong. 1278–83 (Nov. 17, 1779). ↩︎
5. Articles of Confederation, art. IX, § 1. ↩︎
6. Id. at art. VI, § 1. ↩︎
7. 21 J. Cont. Cong. 940–41 (Sept. 7, 1781); 26 J. Cont. Cong. 79 (Feb. 11, 1784). ↩︎
8. 2 Farrand’s 185. ↩︎
9. Id. ↩︎
10. Id. at 411. ↩︎
11. Robert J. Reinstein, Recognition: A Case Study on the Original Understanding of Executive Power, 45 U. Rich. L. Rev. 801, 812–13, 843 (2011). ↩︎
12. Reinstein, supra at 850. ↩︎
13. Id. at 846. ↩︎
14. From George Washington to the Cabinet (Apr. 18, 1793), https://perma.cc/QXS9-7F68. ↩︎
15. The Pacificus–Helvidius Debates of 1793–1794, 14–15 (Morton J. Frisch ed., 2007). ↩︎
16. Id. at 75. ↩︎
17. Id. at 77. ↩︎
18. Saikrishna Prakash & Michael Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 312 –13 (2001). ↩︎
19. Id. ↩︎
20. 3 Story’s Commentaries § 1560. ↩︎
21. Id. ↩︎
22. William Rawle, A View of the Constitution of the United States of America 195 (1829). ↩︎
23. United States v. Palmer, 16 U.S. (3 Wheat.) 610, 643–44 (1818). ↩︎
24. United States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1937). ↩︎
25. Belmont, 301 U.S. at 229. ↩︎
26. Id. ↩︎
27. Zivotofsky v. Kerry, 576 U.S. 1, 7 (2015). ↩︎