Right to Receive Ambassadors and Other Public Ministers: Current Doctrine

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

An examination of this historical practice, along with other functional considerations, led the Supreme Court to hold in Zivotofsky v. Kerry that the Executive retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.1 Although Congress, pursuant to its enumerated powers in the field of foreign affairs, may properly legislate on matters which precede and follow a presidential act of recognition, including in ways which may undercut the policies that inform the President’s recognition decision, it may not alter the President’s recognition decision.2

Footnotes

1

Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). The Court identified the Reception Clause, along with additional provisions in Article II, as providing the basis for the Executive’s power over recognition. Id. at 2085–86 . See supra Clause 1. Powers and Term of the President: Nature and Scope of Presidential Power: Executive Power: Theory of the Presidential Office: The Zivotofsky Case.

2

See Zivotofsky, at 2095. While observing that Congress may not enact a law that “directly contradicts” a presidential recognition decision, the Court stated that Congress could still express its disagreement in multiple ways: “For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the President’s recognition decision.” Id.