Today there’s some interesting news from the realm of foreign relations law: Israeli Prime Minister Benjamin Netanyahu will give an address to Congress next month on the topic of Iran’s nuclear program, presumably to encourage legislators to support a hardline stance and perhaps to undermine the President’s ongoing efforts to achieve a diplomatic solution. To me, the noteworthy part is not so much the address itself, but rather the process by which it was arranged: the White House had no role. In fact, the Administration didn’t even know about it until today. John Boehner says that he invited Netanyahu without consulting officials from the executive branch because “Congress can make [such a] decision on its own.” The President’s Press Secretary responded that it was a breach of protocol for Netanyahu to plan a visit without first contacting the White House.
A couple of quick points. First, addresses of this type have a long historical pedigree. Consider these facts from the Office of the Historian of the House of Representatives, which has a fun website on the subject:
- The House initiated the practice in 1824 by inviting an address from the Marquis de Lafayette.
- In 1874, King David Kalakaua of Hawaii became the first foreign dignitary to receive an invitation to address a joint meeting of Congress.
- Since 1874, approximately 115 foreign leaders and dignitaries have addressed joint meetings of Congress. This group includes people such as Nelson Mandela, Winston Churchill, Margaret Thatcher, Angela Merkel, Queen Elizabeth II, King Hussein I, and Yitzak Rabin.
- Dignitaries from France and the United Kingdom have given the most joint-meeting addresses, followed by dignitaries from Israel (7), Mexico (7), Italy (6), Ireland (6), the Republic of Korea (6), Germany (5), India (4), Canada (3), Argentina (3), Australia (3), and the Philippines (3).
- Single-chamber addresses were the norm initially, but addresses to joint meetings became standard after World War II.
The second point is that all of this practice implicates the separation of powers, particularly the President’s authority over official diplomacy. Whether it’s constitutional seems to depend heavily on your preferred method of interpretation. Originalists and textualists would probably have a hard time identifying the basis for it. Invitations might generally be ok if you think that customary practice can inform the separation of powers, but it’s unclear whether there’s any precedential support for the specific idea that Congress can invite foreign leaders without consulting the President and even against the President’s wishes. Most of the historical practice appears to have involved at least some coordination with the executive branch.