The Pelosi Controversy: Some (Legal) Context

Volokh, Eugene VOLOKH at
Mon Apr 9 16:35:46 PDT 2007

    Yes; I agree with Michael Dorf's view that the Constitution "is best
read to forbid [such] congressional freelancing,"
The Bush administration undoubtedly overreaches when it contends that
the President's power as Commander in Chief precludes Congress---which
has more enumerated powers relative to war than the President
does---from "micro-managing" the war through troop withdrawal deadlines
and the like. Yet surely the administration has a point (albeit a
different one) in objecting to Speaker Pelosi's acting as messenger to
Syria on Israel's behalf at a time when the State Department opposes
direct talks with Syria. (Whether that opposition makes sense is a
different matter.) The Constitution's Article II gives the President the
power to "receive Ambassadors and other public Ministers," while
providing Congress with no parallel authority for conducting
diplomacy---other than the power to confirm U.S. diplomats.

The conventional wisdom holds that the government should speak with one
voice on matters of foreign relations, and having Congress conduct its
own diplomatic missions certainly contradicts that wisdom. To be sure,
it's not obvious that the conventional wisdom is right. For example,
recently the administration has been using congressional threats of
funding cuts to Iraq and Pakistan as a bad cop to its own good cop, and
even if the tactic fails in these particular cases, it can be generally
useful. That strikes me as true even if the good cop and bad cop are not
simply playing a game but are in fact pursuing different policies. The
resulting ambiguity can turn out to be productive.

But even if the conventional wisdom is therefore sometimes wrong as a
matter of policy, it looks right as a matter of constitutional
interpretation. The Constitution is best read to forbid congressional
freelancing (to be distinguished from such things as congressional
factfinding missions to foreign countries for the purpose of oversight
of appropritations and related matters). Speaker Pelosi may undermine
her public position on Iraq---where the Constitution clearly
contemplates a substantial role for Congress---by asserting authority in
an area where the Constitution truly supports Presidential prerogrative.
    The way to better cement this constitutional norm is for the House
to speak out institutionally against such conduct (whether through a
formal bill of censure or a resolution doesn't much matter to me).  I
think it's unlikely it will do so, precisely because she's majority
leader, but I would think it eminently legitimate for her critics to
introduce such a measure.


	From: Sanford Levinson [mailto:SLevinson at] 
	Sent: Friday, April 06, 2007 4:14 PM
	To: RJLipkin at; marty.lederman at;
CONLAWPROF at; Volokh, Eugene
	Subject: Re: The Pelosi Controversy: Some (Legal) Context

	For what it's worth, I agree with Bobby's posting below.  I'm
curious:  would Eugene support a proposal for a formal bill of censure
based on her "unconstitutional" use of the Office of the Speaker to
confer with a foreign head of state in violation of the express desire
(order?) of the President as "sole organ" of foreign policy?
	- Sanford Levinson
	(Sent from a Blackberry)
	----- Original Message -----
	From: conlawprof-bounces at
<conlawprof-bounces at>
	To: marty.lederman at <marty.lederman at>;
conlawprof at <conlawprof at>;
	Cc: RJLipkin at <RJLipkin at>
	Sent: Fri Apr 06 17:12:58 2007
	Subject: Re: The Pelosi Controversy:  Some (Legal) Context
	        I agree "there's nothing at all wrong with Eugene
expressing outrage on this list" or anyone else expressing outrage for
that matter. Eloquently expressed or succinctly stated outrage often
unearths important truths about the topic of the argument and the
character of the argument itself. But this discussion waffled between
the purported legitimacy of expressing outrage at Ms. Pelosi or Mr. Bush
and whether her decision to meet with Assad has any relevance to this
List. I suspect the first issue trumped the second. That's unfortunate.
Mark Tushnet raised the issue of "constitutional pathologies" and I was
trying to get an answer from those condemning Ms. Pelosi, not so much
whether she was carrying out foreign policy, but assuming she was, under
which circumstances, if not these, would a Speaker be justified in
carrying out foreign policy against a wayward president. I might be a
minority of one, but I think questions of this sort--about
constitutional, nonactionable political acts--are important for
understanding constitutional law and theory as well as being
intrinsically interesting. But I am painfully aware that most members of
this List do not agree.
	Robert Justin Lipkin.
	Professor of Law
	Widener University School of Law
	Ratio Juris, Contributor:
	Essentially Contested America, Editor:
	See what's free at
<> .

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