The Pelosi Controversy: Some (Legal) Context

Tue Apr 10 06:56:34 PDT 2007

The conclusion, "he was making a claim as to what was in the best
interests of the country, not as to what was required by the
constitution," poses a marvelous overarching question of Constitutional
design:

Should a nation's constitution be structured so that it protects and
mandates practices that are in the best interests of the country and
excludes or prohibits practices that are not in the best interests of
the country? In other words, if it makes sense not to have practices
that are not in the best interests of a nation embodied in its
constitution, does it not make as much sense to place constitutional
protection or mandate on practices that are? If the answer is no, what
is the standard for separating practices that are in the best interests
of a nation that are constitutionally protected/mandated from those that
are not?

Jim Maule

>>> "Chris SCHROEDER" <SCHROEDER at law.duke.edu> 4/10/2007 7:12:49 AM
>>>
  Eugene writes: *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. ... 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 fact finding missions to foreign countries for the purpose
of oversight of appropritations and related matters).* 

There are longstanding Senate practices that contradict any strong
interpretation of the *one voice* principle.  Whenever foreign heads of
state or foreign ministers visit the United States, they almost always
take a trip to the Capitol, where they meet with the members of the
Senate Foreign Relations Committee in the old ceremonial committee room
that is immediately off the Senate floor.  Take a look the next time TV
carries a picture of senators and a foreign minister/head of state
standing in front of microphones in the Capitol.  Most likely they are
standing in front of the doors to this committee room, which they have
just exited after meetings that can run for several hours.

In these meetings, Senators and the representatives of foreign
countries exchange views, as well as facts, on many matters that concern
American foreign policy.  I am sure that Senators are in the
overwhelming majority of cases circumspect in their expressions of
disagreement with administration policy, but at the same time I know
that disagreements are from time to time expressed.  After all, foreign
ministers can be quite sophisticated in their understanding of American
politics and the positions that elected officials have taken on matters
affecting other countries.  

Then, of course, there is the practice of fact finding missions, which
has already been discussed.  I want only to emphasize how routine these
missions are, at least with respect to Senators (the only chamber with
which I have any personal experience on these matters), as well as how
routine it is --again, speaking of members of the Foreign Relations
Committee -- for Senators to meet with the heads of state or foreign
ministers on those trips.  The discussions that ensue nearly always
contain a blend of facts and opinions.  

How to reconcile these practices which, as I say, are very longstanding
ones, with the "sole organ" rhetoric of Curtiss Wright?  I suggest the
answer is that the rhetoric is being way over read.  Members of Congress
do not have the capacity to speak for the United States in terms of
negotiations or agreements, but they have the capacity to speak as
members of Congress, a body that has legitimate roles to play in
formulating foreign policy via its enumerated powers, should it choose
to exercise one or more of them.  That renders conversations with
foreign officials germane to their legislative functions.  

The conventional wisdom of which Eugene speaks has historically been
the product of custom and convention, not constitutional mandate.  When
Vandenburgh spoke approvingly of partisanship ending at the water's
edge, he was making a claim as to what was in the best interests of the
country, not as to what was required by the constitution.  I believe
that at least some critics of Pelosi's trip are reading their policy
preferences too readily into the constitution.  That is a practice for
which liberals were once roundly criticized, when it concerned matters
of the right to privacy and so forth.  I find it somewhat refreshing to
see that it is a practice embraced by others as well, when the
conversations shift to other constitutional topics.

Chris Schroeder 

>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 4/9/2007 7:35 PM >>>
Yes; I agree with Michael Dorf's view that the Constitution "is best
read to forbid [such] congressional freelancing,"
http://michaeldorf.org/2007/04/congressional-foreign-policy.html: 

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.

    Eugene

________________________________

	From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
	Sent: Friday, April 06, 2007 4:14 PM
	To: RJLipkin at aol.com; marty.lederman at comcast.net;
CONLAWPROF at lists.ucla.edu; 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?

	Sandy
	- Sanford Levinson
	(Sent from a Blackberry)

	----- Original Message -----
	From: conlawprof-bounces at lists.ucla.edu 
<conlawprof-bounces at lists.ucla.edu>
	To: marty.lederman at comcast.net <marty.lederman at comcast.net>;
conlawprof at lists.ucla.edu <conlawprof at lists.ucla.edu>;
VOLOKH at law.ucla.edu <VOLOKH at law.ucla.edu>
	Cc: RJLipkin at aol.com <RJLipkin at aol.com>
	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.

	Bobby

	Robert Justin Lipkin.
	Professor of Law
	Widener University School of Law
	Delaware

	Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/ 
<http://ratiojuris.blogspot.com/>
	Essentially Contested America, Editor:
http://www.essentiallycontestedamerica.org/ 

	________________________________

	See what's free at AOL.com
<http://www.aol.com?ncid=AOLAOF00020000000503> .

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