72 Pages Posted: 2 Mar 2017 Last revised: 9 Mar 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 such as the Paris Agreement on Climate Change, 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 text of Article II. Scrutinizing plain language and previously overlooked evidence of original meaning, 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 scope of executive power. For formalists, it reorients longstanding debates about the process of treaty-making, suggests mechanisms by which the Senate might reclaim influence, and encumbers the President’s ability to implement recent proposals to renegotiate the Iran nuclear deal, the North American Free Trade Agreement, the terms of peace in the Middle East, and the One-China policy, all of which could depend on the work of ad hoc diplomats. For those who are skeptical of formalism, the analysis does not dictate constitutionality, but nevertheless 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
Suggested Citation: Suggested Citation
Scoville, Ryan, Ad Hoc Diplomats (March 1, 2017). Marquette Law School Legal Studies Paper No. 17-08. Available at SSRN: https://ssrn.com/abstract=2926010