Speaker Boehner has invited Israeli Prime Minister Benjamin Netanyahu to address the Congress of the United States. This has made the White House pretty upset, which is understandable from their point of view. It has also led some constitutional lawyers to question whether Boehner actually has the constitutional power to make such an invitation. In other words, does Boehner violate the Constitution by inviting Netanyahu to give a speech before Congress?
Here is a good statement of the argument that Boehner is violating the Constitution. In sum, the argument holds that by hosting Netanyahu, Congress is intruding on a power vested exclusively in the president: the Article II power to receive ambassadors and foreign ministers. There is some impressive historical evidence on this side of this objection, too. Proponents point out that Washington’s administration rebuked French minister Edmond Genet for trying to communicate directly with Congress, admonishing him that the president alone was the sole organ of official communication with foreign nations.
This is a powerful argument, but I am not sure that it succeeds in demonstrating that the invitation is unconstitutional. It is true that Congress has no Article I power to receive foreign government officials. On the other hand, no specific language of the Constitution prohibits it, either. It is also true that the power to receive ambassadors and public ministers is vested solely in the president. But it seems to me that Boehner and company could simply say that they are not “receiving” him in the sense of the Constitution, just letting him make a speech. Again, even if the president is the sole organ of official communication, Congress could just say this is not an official communication, since we are admittedly not the executive branch, but just a speech by a visiting foreigner, who happens to be a foreign nation’s head of government.
Look at it this way. If the president has no authority to prevent Netanyahu from entering the United States, or if he has it but chooses not to exercise it, then presumably Netanyahu can give a speech before any group that is willing to listen to him. He could give a speech to, say, the National Press Club. If he did so, presumably all the members of Congress could go down there and listen to him, if they could all fit in the room, and if the Press Club would admit them. None of this, it seems to me, would be unconstitutional. But if this is permissible, then it seems like splitting hairs to say that the Congress cannot constitutionally host him in their own building.
The whole question is rendered murky by the fact that the branches have an overlapping authority with regard to foreign affairs. The president is undoubtedly the nation’s diplomat. On the other hand, Congress is given the authority to regulate commerce with foreign nations. The issue with with Boehner and Netanyahu are concerned–policy towards Iran–actually involves that power: Congress may decide to place legal sanctions on trade with Iran, or to lift them, or to modify them. In seeking to exercise that power, Congress has an undoubted right to seek out information. If Congress, to inform its deliberations about sanctions, requested a written report from Netanyahu, would it be violating the Constitution? I’m reluctant to say so. But if they are not, why can’t they inform themselves by having him come over and give a speech?
Another point is this: if it is a violation of the Constitution, what is the remedy? This seems like a “political question” that has to be worked out between the elected branches of government. It is hard to imagine any judge issuing an order to Boehner, telling him that he needs to rescind the invitation, any more than a judge would have issued an order telling president Obama to stop bombing Libya back when he was doing that without a congressional declaration of war.