Diplomatic Recognition of Kosovo Revisited – A Reply to Steven Searle

A couple weeks ago, I wrote “Diplomatic Recognition for Kosovo,” in which I discussed the US President’s power to extend diplomatic recognition to foreign states. In response, Steven Searle, a Chicago-based write-in candidate for President, wrote “Kosovo and US Presidential Power.”

In this essay, Searle contends that the US Constitution does NOT grant the US President the sole choice of extending or canceling diplomatic recognition of foreign states. He asks “why should we assume that the power to make the ultimate form of treaty (diplomatic recognition) should rest solely in the hands of the President?” He goes on to ask “[i]f the power to grant diplomatic recognition rests solely with the President, does that mean if President McCain wakes up on the wrong side of bed he can unilaterally decide to withdraw diplomatic recognition from (say) France? This is way too much power for one man to have, and I am confident that our Constitution says so.”

I thank Mr. Searle for bringing up this point, as it gives me an excuse to delve a bit more deeply into the matter. Although the propensity of legal scholarship and historical practice support my claim that the President does have the sole power of extending or canceling diplomatic recognition, Mr. Searle’s contention is worthy of more detailed treatment.

Obviously, this isn’t the place for an exhaustive exploration of all the legal scholarship and historical practice supporting the standard interpretation of Article 2, Section 3, which states that the President “shall receive ambassadors and other public ministers.” Instead, I shall simply note several major points in favor of this ubiquitous interpretation:

1. The word “shall” in “shall receive ambassadors…” does not require the President to receive anyone who claims to be an ambassador. It simply gives the President the discretion to decide. The President decides who is and is not an ambassador – ambassadors he receives, and others he does not. So when, for instance, the Taliban sent a representative to Washington, the President decided that that person was not an ambassador. Only legitimate governments can send ambassadors, and by refusing to consider the Taliban representative an ambassador, the President refused diplomatic recognition to his government. The President shall receive ambassadors, but not everyone who shows up at the President’s door is an ambassador – he decides who does and does not meet that standard.
2. As early as 1793, it was widely recognized that the President has the sole power to extend diplomatic recognition. That year, Edmond Genet arrived in the US from France. He presented his diplomatic credentials, addressed to the US Congress. President Washington would not receive Genet until he returned with diplomatic credentials addressed to the President. Washington’s Secretary of State, Thomas Jefferson, informed Genet that on through the President can “foreign nations or their agents … learn what is or has been the will of the” United States. Washington had the sole power to decide whether or not to receive Genet, and he chose not to
3. That same year James Madison criticized Washington, but he still supported the notion that the President has sole discretion concerning diplomatic recognition. Madison wrote that the President is “most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations.” Notice in particular the last clause of this quote, in which Madison mentions “authenticating.” He believed that the President not only had the sole power of diplomatic recognition, but that he also authenticates – that is, judges – the true status of the foreign representative. The President has a choice.
4. Again in 1793, Alexander Hamilton (under the pseudonym ‘Pacificus’) wrote: “The right of the executive [that is, the President] to receive ambassadors and other public ministers… This right 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 recognized, or not… This power…is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations.” This may be the clearest statement regarding diplomatic recognition during the Founding period – through his power to receive foreign ambassadors, the President has the sole power to judge the status of foreign governments.
5. In 1798, the US Congress passed the Logan Act (which is still officially on the books). This law made it illegal for any private US citizen to engage in diplomatic negotiations with a foreign government. According to its official description, this law was “an Act to prevent usurpation of Executive functions.” In this description, the US Congress itself recognized that the Chief Executive (the President) has the sole power to engage in diplomacy with foreign governments. Inasmuch as the recognition of foreign states is a fundamental diplomatic function, the Congress understood that the President alone has this power.
6. In 1799, John Marshall, then a member of the House, stated that “the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Of course, Marshall went on to become the most influential Chief Justice of the US Supreme Court. But the important point here is that, because the President is the US’s “sole representative with foreign nations,” only the President has the right to decide which countries to recognize.
7. Rather than enumerate and elaborate each instance of diplomatic recognition during the nineteenth century, I’ll simply quote from the venerable John Bassett Moore, whose 1906 Digest is an authoritative source on that period’s diplomatic history. He wrote: “In every case, as it appears, of a new government… the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President … invoked the judgment and cooperation of Congress… In numerous other cases, the recognition was given by the Executive solely on his own responsibility.” Moore’s extensive study had yielded the conclusion that although in several cases the President had chosen to ask Congress’s advice, this advice was neither required not binding. On most occasions, the President neither sought nor received it.
8. In 1897, during a national debate regarding the recognition of Cuba, the Senate Foreign Relations Committee carefully studied the President’s power to receive foreign ambassadors. Their study concluded that: “The recognition of independence … is distinctly a diplomatic matter. Diplomatic relations with a new power are properly, and customarily inaugurated … through an envoy sent for the purpose. The reception of this envoy … is the act of the President alone… Nor can the legislative branch of the Government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties.” I couldn’t have said it better myself. The President is the only officer who can recognize the independence of a foreign state.
9. In 1913, President Wilson refused to extend diplomatic recognition to Huerta’s government in Mexico. He also refused recognition to the Soviet Union. Similarly, Hoover refused recognition to the Japanese puppet state of Manchukuo in 1932, and Truman refused the Communist government in China. Of course, President Carter officially canceled the US’s diplomatic recognition of Taiwan and extended it to the People’s Republic of China, completing a course of action set in motion by Nixon’s visit to the PRC in 1972. The US Supreme Court case of Goldwater v. Carter (1979), which arose from this episode, did not touch on the question of the President’s power to cancel diplomatic recognition.

These are just 9 quick vignettes that serve to illustrate that the preponderance of scholarship and practice support the notion that the President has the sole authority to chose which foreign governments and states will receive diplomatic recognition by the United States. Like any text, the US Constitution is open to interpretation, and on matters of interpretation reasonable people may disagree. But the weight of the evidence indicates that Mr. Searle’s interpretation of Article 2, Section 3 has not been dominant in US history.