For the record: Netanyahu’s visit

Congress, which disagrees with President Obama’s policy on Iran, has invited the Prime Minister of Israel, Benjamin Netanyahu, who also disagrees with Obama’s policy on Iran, to speak before a joint session. 1 Among other commentary, Michael Ramsey, whose 2001 article with Sai Prakash, The Executive Power over Foreign Affairs, gives him unimpeachable originalist credentials on this point, has concerns that Congress’ invitation is unconstitutional, exceeding its enumerated powers and intruding on the President’s general, residual authority over foreign affairs. 2 Adam White, another lawyer in FedSoc orbit of some repute (albeit less well-credentialed in this area than Ramsey), disagrees, acknowledging that Ramsey’s points have force, but perhaps less weight than Ramsey thinks. 3

So far as the constitutionality of the invitation, I am not persuaded by either position. Like David Bernstein, I am content to answer “maybe.” 4 I can leave that question unresolved here because I conclude that even if Ramsey is wrong that the invitation is unconstitutional, it is at least illicit and improper, for the reasons that Ramsey identified in his 2001 article, and that determination is outcome-determinative here. Foreign affairs are generally an executive responsibility, and it is improper for Congress to extend such an invitation over the President’s disagreement, even if it has the power to do so. 5 Like Reihan Salam, I admire Netanyahu and I don’t like Obama’s foreign policy, and so it pains me to say this, 6 but Obama is President, and as such, it is for him to make this kind of foreign-policy determination, even when I disagree with that determination. 

Netanyahu did nothing wrong by accepting the invitation, and Congress cannot now rescind that invitation without it being perceived as a slight, but it should not make such invitations in the future.

Notes:

  1. See, e.g., NYT slams Republicans for inviting Netanyahu to address Congress, Haaretz, Jan. 24, 2015, http://www.haaretz.com/news/diplomacy-defense/1.638740; Patricia Zengerle, Invitation to Netanyahu to address U.S. Congress: When bipartisan means partisan, Reuters, Jan. 23, 2015, http://www.reuters.com/article/2015/01/23/us-israel-usa-congress-idUSKBN0KW2H520150123 (all cited web resources as last visited Jan. 29, 2015.
  2. Ramsey, Is Netanyahu’s Address to Congress Unconstitutional?, The Originalism Blog, Jan. 25, 2015,
    http://originalismblog.typepad.com/the-originalism-blog/2015/01/is-netanyahus-address-to-congress-unconstitutionalmichael-ramsey.html; accord Peter Spiro, Is Boehner’s Netanyahu Invite Unconstitutional?, Opinio Juris, Jan. 22, 2015, http://opiniojuris.org/2015/01/22/boehners-netanyahu-invite-unconstitutional; see generally Prakash & Ramsey, Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001); American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003).
  3. White, The Constitution Doesn’t Let President Close Congress’s Doors to Israel, Weekly Standard Blog, Jan. 26, 2015, http://www.weeklystandard.com/blogs/constitution-doesnt-let-president-close-congresss-doors-israel_824707.html.
  4. see Bernstein, Is Netanyahu’s address to Congress unconstitutional?, The Volokh Conspiracy, Jan. 25, 2015, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/25/is-netanyahus-address-to-congress-unconstitutional.
  5. Cf. Doe v. Bolton, 410 U.S. 179, 222 (1973) (White, J., dissenting).
  6. Cf. Salam, Netanyahu’s Visit and the Executive Power to Receive Foreign Leaders, The Corner, Jan. 28, 2015, http://www.nationalreview.com/corner/397396/netanyahus-visit-and-executive-power-receive-foreign-leaders-reihan-salam. When writing at SF, I often pointed out that the very best time to articulate and stand on a constitutional principle is when it cuts against one’s immediate interests and preferences to do so, because that is a vouchsafe that it is truly the principle that has dictated the outcome. When the Supreme Court took the Noel Canning case, for example, I was able to say that the President’s recess appointments were invalid without fear of being thought partisan, because I had a record of criticizing the Constitutionality of such recess appointments that dated back into the Bush Administration.