Prime Minister Netanyahu’s July 24 address to a joint session of Congress was brilliant, and I only wish America had politicians capable of delivering such powerful and eloquent messages about the “clash between barbarism and civilization.” His offer of peace to the Palestinians if they would stop attacking Israel and stop teaching their children to hate Jews, and his demand that Gaza be “demilitarized and deradicalized,” are more than reasonable.
Nevertheless, I believe it was wrong for Congress to invite the Israeli Prime Minister to formally address Congress in the absence of clear approval from President Biden.
When the Founding Fathers vested the nation’s “executive power” in the president in Article II, Section 1 of the Constitution, in the words of former University of Chicago Professor Quincy Wright, “the foreign relations power was the essential element of the grant.” In his landmark 1922 book, The Control of American Foreign Relations, Professor Wright explained: “In foreign affairs, . . . the controlling force is the reverse of that in domestic legislation. The initiation and development of details is with the president, checked only by the veto of the Senate or Congress upon completed proposals.” And as rivals Thomas Jefferson and Alexander Hamilton agreed, such vetoes had to be expressly provided for in the Constitution and were to be “construed strictly.”
In the landmark 1936 Supreme Court case of U.S. v. Curtiss-Wright, the Supreme Court declared:
Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
In 2007, I argued in the Wall Street Journal that House Speaker Nancy Pelosi’s visit to Syria to discuss U.S. foreign policy with its dictator was a felony violation of the 1802 Logan Act. During the negotiations for that statute, which were entitled in the Annals of Congress “Interference with the Executive Function of Government,” even Dr. Logan’s friend Republican Albert Gallatin acknowledged that it would be especially inappropriate for a Member of Congress to engage in communications with a foreign government in opposition to the policies of the president.
I may be mistaken that President Biden was opposed to this visit, but he is currently the president, and Congress needs to accept that the Constitution gives him special prerogatives with which it must not interfere. That was true when Nancy Pelosi freelanced during the George W. Bush administration, and the Constitution does not change based upon which party controls the White House.
To be sure, Congress has long invited foreign leaders to address one or both of its chambers. The first such address occurred on December 10, 1824, when the Marquis de Lafayette address the House. British Prime Minister Winston Churchill addressed a joint session of Congress shortly after Pearl Harbor was attacked in 1941, and more than 100 other foreign leaders have done so over the decades. Prime Minister Netanyahu appears to hold the record with three such addresses. I thought his most recent talk was excellent, but my pleasure was tempered by a profound concern that it may have been inconsistent with our constitutional system of government.
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