Should the Senate Give Advice and Consent on Special Envoys?

Potograph of an antique globe of the world showing the continents and nations circa the 1800s.Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. An optimistic take is that such an arrangement would promote meritocracy and encourage greater deliberation in the use and selection of ad hoc diplomats. The more pessimistic view is that Senate involvement would interfere with the conduct of foreign relations by introducing an additional source of delay and partisanship.

Whatever one makes of the practical merits of Section 301, there’s a sensible constitutional objection: Article II confers on the President the power to conduct foreign relations, the executive branch has invoked this power to justify a common practice of unilateral diplomatic appointments, and Congress has largely acquiesced. Indeed, ever since the Foreign Service Act of 1980, Congress has expressly accepted that the President may appoint envoys without advice and consent for special missions of up to six months in duration, as long as the President notifies the Senate Foreign Relations Committee in advance. In purporting to end this practice, Section 301 arguably violates the separation of powers.

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A Cuban Perspective on International Law

As a member of the group of students and faculty who recently visited Cuba, I want to concur in all of the prior posts that expressed how fascinating it was to tour Havana, learn about some of the history, and in particular interact with the people. Prior to the trip, my only encounters with socialists had taken place in Berkeley, California and Eugene, Oregon, so I’d always associated the ideology with Left Coast stuff like patchouli and hemp shoulder bags. This was my first opportunity to meet and talk with genuine, born-and-raised socialists–people who think of Marx and Engels the way we might think of Locke or Smith. One of those people was Celeste Pino Canales, a professor of public international law at the University of Havana, who spoke with us about Cuban perspectives on international law and, afterward, allowed me to interview her on what it’s like to be a law professor in Cuba. A post about our conversation is available here.

 

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Congratulations to the Jessup Moot Court Team

A group of Marquette students just finished an extremely successful weekend at the Jessup International Law Moot Court Competition, which took place in Chicago and featured schools from across the midwest. The team of Matt Ackmann, Joel Chappelle, Solomon Gatton, and Colin Stephenson finished preliminary rounds ranked third out of twenty teams, advanced to quarterfinals, and received a trophy for writing the fourth-best briefs. In addition, out of eighty individual competitors, Colin and Joel received awards for being the fifth- and seventh-best speakers, respectively. Having watched a couple of their rounds, I can attest that they did a fantastic job.

Thanks to the efforts of these students, Megan O’Brien, and various alumni, Marquette has now placed teams in regional quarterfinals two years in a row. We look forward to extending this record of success in the coming years.

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