[The President] shall receive Ambassadors and other public Ministers....
The Articles of Confederation vested the powers “of sending and receiving ambassadors” in Congress, though they were delegated to the Committee of the States when Congress was not in session (Article IX). In the Constitutional Convention, the delegates at first followed the example of the Articles by vesting the appointment of American ambassadors as well as the treaty power in the Senate without executive participation. The Committee of Detail adopted Edmund Randolph’s suggestion that the president be given the power to “receive” ambassadors. The Committee of Eleven later transferred to the president the treaty and appointment powers (subject to Senate approval), joining them to the independent power to receive ambassadors and other public ministers, such as consuls and other diplomats accredited to the United States by any foreign state. The convention approved the changes. In this light, it is difficult to say that the framers thought that the power to receive ambassadors was part of any larger executive branch responsibility for foreign affairs. In The Federalist No. 69, in fact, Alexander Hamilton described the president’s power to receive ambassadors as merely the most “convenient” expedient, compared with the “necessity of convening the legislature” whenever a new ambassador arrived in the American capital.
Does the power to receive ambassadors necessarily imply a power to refuse their reception? And if it does, what degree of presidential control of foreign relations follows from such a power? In his 1829 book, A View of the Constitution of the United States, William Rawle declared, “Under the expression, he is to receive ambassadors, the president is charged with all transactions between the United States and foreign nations.” The president can refuse to receive putative ambassadors whose credentials are in serious doubt. Where no such doubt exists, however, a presidential refusal to receive an ambassador amounts to a decision not to “recognize” a foreign government, or at least not to carry on diplomatic relations with it, with all the consequences in international law and diplomacy that may follow from such a rupture.
From an early date, the federal courts have held, until quite recently, that the clause raises only “political questions” to be decided by the other branches, not by the judiciary. Credentials as an ambassador may matter greatly in certain legal cases, but the courts will not inquire further than to assure themselves that the president has or has not received an ambassador as representing his government. United States v. Ortega (1825); In re Baiz (1890).
The historical debate over the deeper implications of the clause—namely, whether it accords the president an unfettered right to “recognize” another nation for diplomatic purposes—has accordingly taken place in the political arena, at least for the most part. Alexander Hamilton (as “Pacificus”) and James Madison (as “Helvidius”) first discussed the question in their debate over President Washington’s Proclamation of Neutrality of 1793. Madison characterized the power of reception as merely ministerial, carrying no discretion to accept or reject the legitimacy of a foreign government—a discretion he would have lodged in Congress. Hamilton, altering the position he expressed in The Federalist, held that the power “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.” He concluded that the clause touched on “an important instance of the right of the Executive to decide the obligations of the Nation with regard to foreign Nations.”
As a practical matter, Hamilton’s argument of 1793 has prevailed historically. As then Representative John Marshall put it in 1800, “[t] he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence the demand of a foreign nation can only be made on him.” Should a would-be ambassador arrive in the capital and be refused reception by the president, there is nowhere else under the Constitution that he can turn. Likewise, it is difficult to see how the reception of an ambassador, and the consequent opening of diplomatic relations with a previously unrecognized government, can be undone by the action of another branch of government. United States v. Belmont (1937). Congress possesses other formal powers over foreign affairs, but this clause has come to be widely understood as giving the president one of his considerable advantages in the conduct of American foreign policy. He has, for example, the power to make agreements incident to his act of receiving ambassadors. Thus, the Supreme Court relied upon the clause to validate President Franklin D. Roosevelt’s signing of the Litvinov Assignment with the U.S.S.R. on the basis of his power to recognize foreign governments and receive ambassadors. United States v. Pink (1942).
The Supreme Court has recently held that the clause does not—at least not invariably— necessitate the invocation of the “political questions” doctrine. The case involved a statute arguably impinging on the conduct of our diplomatic relations. Congress had legislated an affirmative right of citizens born in Jerusalem to have “Israel” named as their place of birth in official United States documents. But the executive branch, resisting the mandate of the statute, argued that the courts must either treat the matter as nonjusticiable under the “receive Ambassadors” clause, or, if deciding the merits, hold that Congress may not invade the executive’s control of foreign relations by legislating on the contents of documents issued by the United States where those documents affect our diplomacy. Lower courts took the first position, holding the dispute nonjusticiable as a political question. The Supreme Court disagreed, holding that the constitutionality of the statute was a fit subject for judicial review, and remanded for further proceedings on the merits of the controversy between Congress and the executive branch. Zivotofsky v. Clinton (2012).
Edward S. Corwin, The President: Office and Powers 1787–1957, 177 (4th ed. 1957)
Alexander Hamilton, Pacificus no. 1 (29 June 1793), in 15 The Papers of Alexander Hamilton 33 (Harold C. Syrett et al. eds. 1969)
Louis Henkin, Foreign Affairs and the United States Constitution, 35 (2d ed.1996)
James Madison, Helvidius no. 3 (7 September 1793), in 15 The Papers of James Madison 95 (William T. Hutchinson et al. eds., 1985)
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Section 303, Comment g (1987)
United States v. Ortega, 27 F. Cas. 359 (C.C.E.D. Pa. 1825) (No. 15,971)
In re Baiz, 135 U.S. 403 (1890)
United States v. Belmont, 301 U.S. 324 (1937)
Guaranty Trust Co. of New York v. United States, 304
U.S. 126 (1938)
United States v. Pink, 315 U.S. 203 (1942)
Goldwater v. Carter, 444 U.S. 996 (1979)
Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012)