67 Pages Posted: 7 Feb 2013 Last revised: 4 Dec 2013
Date Written: February 5, 2013
A traditional view in legal scholarship holds that the Constitution assigns to the President an exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its membership routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign legislatures. And members of the House and Senate frequently travel overseas on congressional delegations, or “CODELs,” to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the President. Moreover, many of these activities have occurred ever since the Founding. Together, they comprise an understudied field of legislative diplomacy. This Article has two purposes: The first is to use State Department cables from Wikileaks, a compilation of public reports, and original historical sources to provide a uniquely detailed descriptive account of legislative diplomacy. The second is to develop theories about the practice’s constitutionality. Text, original meaning, and customary practice suggest that the separation of diplomacy powers is more complicated than commonly assumed, and that those powers do not belong exclusively to the President. The analysis serves as a counterpoint to the widely held belief that authority over foreign affairs overwhelmingly belongs to the executive.
Keywords: Constitutional law, diplomacy, foreign affairs, powers of Congress, separation of powers, Congressional foreign travel
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