As many have noted, Israeli Prime Minister Benjamin Netanyahu’s upcoming address to Congress is intriguing because of the process by which it was arranged: House Speaker John Boehner (R-Ohio) invited Netanyahu without consulting the White House. Peter Spiro, Michael Ramsey, and David Bernstein have each argued (here, here, and here) that this action intrudes upon executive power over diplomatic relations. For present purposes, I will concede their point as a matter of constitutional text and structure. If the Speaker’s aim were simply to inform federal legislators about the Israeli government’s views on pressing issues, one might conceivably justify the arrangement as relying on Congress’s implied powers of investigation, which the Supreme Court has interpreted quite broadly. But given Boehner’s recent statements, fact-finding does not appear to be a primary or even secondary motive.

This leaves questions of original meaning and custom, and it is here where I think the blogosphere has been too summary in its judgment. Ramsey emphasizes that influential members of the Washington Administration viewed the executive as a constitutionally required intermediary for official communication between Congress and foreign governments. Spiro suggests that there is no supporting practice from the Founding Era. And Bernstein states, albeit somewhat tentatively, that “direct diplomatic relations with foreign governments are exclusive in the executive.” In my view, this commentary overlooks a lot of important precedent and, in the case of Ramsey, focuses too much on the views of the Washington Administration and too little on contemporaneous understandings of the First Congress. Consider: 

Federal legislators have been conducting diplomacy independently since the Founding. Members of the First Congress corresponded with foreign officials by letter on various matters and invited them to observe debates in the House and Senate. They also rubbed shoulders at elite social functions. Inevitably, some of these contacts generated discussions about official business. As I wrote in 2013:

[I]n 1789, at least six different members of the First Congress conversed about legislation and foreign policy with George Beckwith, a senior intelligence officer in the English army and unofficial diplomat to the United States. In one letter to Don Diego de Gardoqui, the former Spanish charge d’affaires and soon-to-be finance minister, Senator Pierce Butler encouraged the Spanish government to send a permanent diplomatic representative to the United States. In a letter to Antoine de la Forest, the acting head of the French legation in the United States, Senator Butler recommended that the French government purchase naval supplies from an American businessman named George Hooper. In 1795 and 1796, Pierre-Auguste Adet, the French ambassador to the United States at the time, worked extensively with Republicans in Congress to secure American support for France and prevent the United States from adopting Jay’s Treaty. Other French officials did the same. Moreover, I came across no evidence that the Washington Administration objected to these practices or that members of the House and Senate understood the contacts as a violation of the separation of powers.

Some may point to the Logan Act of 1799 as contrary evidence of original meaning because it provides for criminal penalties against “any” U.S. citizen who, without the permission or authority of the federal government, carries on “any verbal or written correspondence or intercourse with any foreign government, or any officer or agent thereof” with the intent to affect U.S. foreign relations. I disagree for a few reasons, again stated previously:

First, it is problematic to rely on the actions of the Fifth Congress as evidence of original meaning. It convened in 1797—over a decade after the Constitution’s ratification; it featured highly partisan debates between Federalists and Anti-Federalists and passed the controversial Alien and Sedition Acts; and those who participated in drafting and ratifying the Constitution were by that time only a small minority of the membership. Second, the Logan Act’s legislative history suggests that the drafters were primarily concerned about the prospect of individuals attempting to negotiate solutions to international disputes involving the United States—acts that would plainly fall within the scope of the executive power to speak on behalf of the nation. A majority of those who addressed the issue made statements to this effect. Representative Samuel Dana, one of the legislation’s supporters, explained that it was “not intended . . . to provide against all correspondence with foreign Governments, but against such only as ought to be carried on by the Executive.” The recorded debates provide no evidence that the drafters aimed to prevent U.S. citizens, including legislators, from corresponding with foreign governments in ways that did not amount to international negotiations. Finally, the executive has never used the Logan Act to prosecute a federal legislator, despite several opportunities to do so.

Diplomatic activity by Congress has become even more pervasive over time. Collectively, members of the House and Senate now travel overseas hundreds and even thousands of times per year to meet with foreign leaders, bureaucrats, and legislators. Lobbyists for foreign governments are a constant presence on Capitol Hill. More than one hundred foreign leaders and dignitaries have addressed Congress since 1874. And although less common, members of Congress have at times engaged in diplomacy in opposition to executive policy. For example, legislators have traveled to places such as Syria, Honduras, Cuba, and Gaza in recent years, notwithstanding opposition from the President. Others have criticized executive policies during meetings with foreign governments.

The point is not that these various practices establish constitutionality, but rather that they form an underappreciated aspect of the legal context, and that any thorough originalist or functionalist treatment must reckon with them. For those who think that Boehner’s invitation is unconstitutional, and that original meaning and official custom inform the separation of powers, the question becomes: how is inviting an address by Netanyahu materially different from the various other forms of contact that Congress and its members have pursued, mostly without objection, ever since the Founding?

To be sure, differences do exist. As a request for a foreign leader to address a joint meeting of Congress, Boehner’s communication had an air of formality. It also stood in tension with U.S. policy on Iran’s nuclear program. And the Speaker did not coordinate with the executive in advance. In contrast, the customary practice of legislative diplomacy is somewhat informal, generally avoids inconsistency with executive policy, and relies on close cooperation between Congress and the State Department. If these differences are material in a constitutional sense, then Boehner cannot draw support from the weight of historical practice, and his action probably violates the separation of powers even under non-textual modes of analysis.

But the real work is in deciding whether the features that seem to distinguish the invitation are in fact material. I am open to the possibility that at least some of them are, but also want to suggest that the appropriate resolution is not as obvious as one might think. For instance, as long as Congress does not enter Article II territory by purporting to communicate on behalf of the United States, formality per se strikes me as largely irrelevant. Nor is it clear that a communication’s inconsistency with executive policy should necessarily make a difference. After all, foreign governments have ample means of monitoring disagreements between the President and Congress regardless of whether legislators express their views directly to foreign officials. Boehner’s communication was certainly no ode to the one voice doctrine, but it was well known even before last week that a significant portion of Congress opposes elements of the President’s Iran policy. In situations like this, contact with foreign officials reveals little.

The bottom line is that the historical record is not as straightforward as some have suggested. It deserves closer analysis. Because there is a long and largely uncontested tradition of direct interaction between legislators and foreign officials, no one who cares about original meaning or customary practice can assert that Boehner’s invitation is unconstitutional simply because it is legislative diplomacy. The argument must be, instead, that it is legislative diplomacy of a particular type.