Presidential reception of ambassadors and other public ministers, understood by the Framers as a clerk-like duty, a mere administrative function, was transformed by presidents in the 20th Century as a wellspring of discretionary authority to determine which nations the United States would have relations with and what the tone and temper of those relations would be.
The reception of an ambassador entails consequences under international law, chiefly the recognition of foreign governments and states. The Framers, operating against a backdrop of international law principles that held that sovereign nations have a duty to receive ambassadors from other sovereign nations, determined, as Alexander Hamilton explained in Federalist No. 69, to impose this duty on the President as a matter of “convenience.” Hamilton said that the authority “to receive ambassadors and other foreign ministers . . . is more a matter of dignity than authority. It is a circumstance which will be without consequence in the administration of government; and it was thus far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.” Given Hamilton’s explanation, there was no reason to view the “Reception Clause” as a source of discretionary policymaking authority for the President. In fact, Article 2, Section 3 of the Constitution emphatically declares, “He shall, [ not ‘may’] receive Ambassadors and other public ministers,” an injunction that stands in sharp contrast with the discretionary constitutional powers that the President may choose to exercise, such as the decision to “convene both Houses” of Congress. Thus, the Framers, as James Madison wrote in 1793, gave the President no prerogative whatever to reject foreign ministers. Madison explained that “when a foreign minister presents himself, two questions immediately arise: Are his credentials from the existing and acting government of his country? Are they properly authenticated?” Those questions, Madison noted, “are merely questions of fact,” and if answered affirmatively, the President was duty bound to receive the minister.
The Framers’ emphasis on the mechanical nature of the reception function, reflected their acceptance of the doctrine of de facto recognition, which requires diplomatic relations with the government that actually exercises controlling powers, as opposed to the principle of de jure recognition, which counsels a determination of the legitimacy or legality of a governing regime. In a letter written on December 30, 1792 to Charles Cotesworth Pinckney, the U. S. minister to London, for the purpose of clarifying U.S. policy toward the revolutionary French government, Secretary of State Thomas Jefferson explained the rationale behind the American doctrine of de facto recognition: “We certainly cannot deny to other nations that principle whereon our own government is founded, that every nation has a right to govern itself internally under what forms it pleases and to change those forms at its own will.”
The transformation of a humble administrative duty into a broad discretionary power to conduct foreign policy began under President Woodrow Wilson. From 1913 to 1921 President Wilson, adhering to a theory of democratic legitimacy with respect to Latin American countries, refused to grant recognition to governments in that region that had come to power through revolution or violence when lawful constitutional means of achieving change existed. Then, in 1920, Wilson, through Secretary of State Bainbridge Colby, declared that the United States would not recognize the Soviet Union, on the grounds that the USSR was dedicated to the revolutionary overthrow of other governments in the state system. During the next 13 years, successive presidents adhered to Wilson’s unilateral decision to refuse recognition of the Soviet Union, a policy that went largely unchallenged by an isolationist Congress.
Ironically, this process of turning the Framers’ reception function into a broad-based presidential foreign policy tool reached its full development when, in 1933, President Franklin D. Roosevelt decided to reverse the policy and recognize the Soviet Union, under the same constitutional authority that Wilson had abused to refuse recognition. Roosevelt’s act of recognition then broadened into a unilateral agreement called the “Litvinov Assignment”—an agreement on property claims between the two nations. In United States v. Belmont (1937), Justice Sutherland upheld the validity of the pact and said the agreement derived its force from both the President’s status as the sole organ of American foreign policy and his power to recognize foreign governments. Justice Sutherland stated that Senate consultation was not required. The Court again considered the validity of the Litvinov Assignment five years later in United States v. Pink (1942). Once more, the Court upheld the agreement and enthusiastically embraced the “sole organ” doctrine and a capacious view of executive power. These decisions represented an exercise in judicial activism, and inflated the reception function into a towering structure of executive power. Thus in later years, President Harry S. Truman, believed that he was firmly grounded in his decision not to recognize the People’s Republic of China as well as several of the communist satellite states of Eastern Europe. Under changing circumstances in later years, President Richard M. Nixon felt similarly authorized to reverse that policy in 1972 to extend what amounted to diplomatic recognition to the PRC, an effort that was completed in 1978 when President Jimmy Carter fully “normalized” relations with China through a unilateral decision to recognize the regime of Beijing and derecognize the competing government in Taiwan.
In the Supreme Court’s decision in Zivotofsky v. Kerry (2015), Justice Anthony Kennedy’s majority opinion held for the Court that the President has exclusive power to recognize foreign states and governments, and that Congress cannot constitutionally impinge on that power by statutorily requiring the President to list Israel on the passports of United States citizens born in Jerusalem. The exclusive nature of the recognition power, Kennedy observed, prevented Congress from passing a statute that undercut the decades-old position of the U. S. executive branch that resisted recognition of Jerusalem as part of Israel. Justice Kennedy noted the sensitive question of the status of Jerusalem in the Middle East and deferred to the expertise of the executive in engaging in “delicate” matters of diplomacy. Chief Justice John Roberts, in dissent, pointed out that for “our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs.” Chief Justice Roberts was correct in saying that the presidential role in receiving foreign ministers was, for the Framers, a “duty,” rather than a discretionary power, but executive aggrandizement of power in foreign affairs has eclipsed the constitutional design.