Ad Hoc Diplomats
77 Pages Posted: 2 Mar 2017 Last revised: 10 Nov 2017
Date Written: March 1, 2017
Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats—individuals chosen exclusively by the president to complete limited and temporary assignments—play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.
This Article critically examines the appointments process for such irregular agents. An orthodox view holds it permissible for the president to dispatch any ad hoc diplomat without Senate confirmation, but this view does not accord with the original meaning of Article II. Scrutinizing text and an extensive collection of original historical sources, I show that, under a formalist reading of the Constitution, the appointment of most ad hoc diplomats requires the advice and consent of the Senate because these agents are typically “public Ministers” and “Officers of the United States” under the Appointments Clause.
The analysis carries significant implications at a time of trepidation over the trajectory of U.S. foreign policy. For formalists, it reorients longstanding debates about the process of treaty-making and empowers the Senate to exert greater influence over a wide variety of presidential initiatives, including the renegotiation of trade agreements, the campaign to defeat ISIS, communications with North Korea, and the stabilization of Ukraine, all of which depend on the work of ad hoc diplomats. More generally, the analysis illuminates rhetorical and doctrinal maneuvers that have facilitated the rise of the modern presidency, including historical revisionism and the marginalization of international law as an input in constitutional interpretation. These maneuvers complicate the political valence of originalism and cast the Justice Department’s Office of Legal Counsel (OLC)—a key proponent of the orthodox view—as a motivated expositor of the separation of powers.
Keywords: Appointments Clause, Originalism, Separation of Powers, Treaties, Special Envoys, Law of Nations
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