Authority Over Foreign State Recognition

Executive Branch Authority Over Foreign State Recognition in 2013 (Continuation)

United States views on international law [1] in relation to Executive Branch Authority Over Foreign State Recognition: Post-ratification History Both parties make extensive arguments regarding the post-ratification recognition history of the United States. As the Supreme Court has explained, longstanding and consistent postratification practice is evidence of constitutional meaning. …We conclude that longstanding post-ratification practice supports the Secretary's position that the President exclusively holds the recognition power.

More about Executive Branch Authority Over Foreign State Recognition

Beginning with the administration of our first President, George Washington, the Executive has believed that it has the exclusive power to recognize foreign nations. In 1793, President Washington's cabinet unanimously concluded that Washington need not consult with the Congress before receiving the minister from France's post-revolutionary government, notwithstanding his receiving the minister recognized the new government by implication. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power Over Foreign Affairs, 111 YALE L.J. 231, 312 (2001). Nor did the Congress “purport[ ] to tell Washington which countries or governments to recognize.” Id. at 312–13. The Washington administration also took sole control of issuing exequaturs to foreign consuls. Id. at 313 (President Washington “not only signed exequaturs, he also set policy respecting their issuance” (footnote omitted))…

Development

In 1817, President James Monroe prevailed in a standoff with Speaker of the House Henry Clay over the recognition power. Clay had announced that he “intended moving the recognition of Buenos Ayres and probably of Chile.” Julius Goebel, Jr. The Recognition Policy of the United States 121 (1915). But when Clay attempted to amend an appropriations bill to appropriate $18,000 for an American minister to be sent to South America, id. at 123–24, he was forced to modify the amendment to manifest that the decision whether to send the minister belonged to the President, see 32 ANNALS OF CONGRESS 1498–1500 (1818). And, in fact, even Clay's weakened amendment was defeated in the House; “the reason for the defeat appears to have been that the amendment was interfering with the functions of the executive.” Goebel, in this world legal Encyclopedia, at 124; see also 32 ANNALS OF CONG. 1538 (1818) (statement of Rep. Smith) (“The Constitution has given … to the President the direction of our intercourse with foreign nations. It is not wise for us to interfere with his powers….”); id. at 1570 (statement of Rep. Smyth) (“[T]he acknowledgement of the independence of a new Power is an exercise of Executive authority; consequently, for Congress to direct the Executive how he shall exercise this power, is an act of usurpation.”). According to Goebel, Clay's defeat “meant a great increase of strength for the administration” because “it had received a direct confirmation of its ultimate right to determine whether a government was to be recognized.” Goebel, in this world legal Encyclopedia, at 124.

Details

In 1864 and, again, 1896, the Executive branch challenged the individual houses of the Congress for intruding into the realm of recognition, which eventually led the Congress to refrain from acting. In 1864, the House passed a resolution asserting that it did not acknowledge Archduke Ferdinand Maximilian von Habsburg as the Emperor of Mexico. CONG. GLOBE, 38TH CONG., 1ST SESS. 1408 (1864). The then-Secretary wrote to the United States Minister to France, stating that the recognition authority is “purely executive,” belonging “not to the House of Representatives, nor even to Congress, but to the President.” Id. at 2475. The Senate ultimately did not act on the bill. In 1896, the Senate Foreign Relations Committee presented a joint resolution to the full Senate purporting to recognize Cuba's independence. 29 CONG. REC. 326, 332 (1896). The then-Secretary responded with a statement that the power to “recognize the so-called Republic of Cuba as an independent State rests solely with the Executive”; a joint resolution would have only “advice of great weight.” Eugene V. Rostow, Great Cases Make Bad Law: The War Powers Act, 50 TEX. L.REV. 866–67 (1972) (quotation marks omitted)…. Again, the Senate did not act on the proposed joint resolution.

More

In 1919, the Congress once again relented in response to the President's assertion of exclusive recognition power. That year, the Senate considered a resolution which recommended withdrawing recognition of the then-existing Mexican government. PRELIM. REPORT & HR'GS OF THE SEN. COMM. ON FOREIGN RELATIONS, INVESTIGATION OF MEXICAN AFFAIRS, S. DOC. NO.. 66–285, at 843D (2d. Sess.1919–20). In response, President Woodrow Wilson informed the Congress that the resolution, if enacted, would “constitute a reversal of our constitutional practice which might lead to very grave confusion in regard to the guidance of our foreign affairs” because “the initiative in directing the relations of our Government with foreign governments is assigned by the Constitution to the Executive, and to the Executive, only.” Id. “Within half an hour of the letter's receipt[,] Senator Lodge, Chairman of the Foreign Relations Committee, announced that the [ ] resolution was dead. President Wilson, Mr. Lodge said, must now accept entire responsibility for Mexican relations.” Wilson Rebuffs Senate on Mexico, N.Y. TIMES, Dec. 8, 1919, available at (link resource) query.nytimes.com/gst/abstract.html?res=9C00E2DD123BEE32A2575AC0A9649D94689 6D6CF.

Resources

Notes

1. Executive Branch Authority Over Foreign State Recognition in the Digest of United States Practice in International Law