Why Boehner’s invite to Netanyahu is unconstitutional

March 2, 2015
U.S. President Barack Obama meets with Israel's PM Benjamin Netanyahu at the White House in Washington

President Barack Obama (R) meets with Israeli Prime Minister Benjamin Netanyahu at the White House in Washington, October 1, 2014. REUTERS/Kevin Lamarque

House Speaker John Boehner’s annoyance with President Barack Obama is turning into a grudge match against the Constitution.

Boehner’s decision to invite a foreign head of government to address Congress without first consulting the sitting president has no precedent in American history. And for a simple reason. It’s unconstitutional.

Boehner (R-Ohio) fully admits that his failure to communicate with the White House was not an oversight. Like a schoolboy passing notes when the teacher turns to the blackboard, he sneaked behind Obama’s back to set the date for Israeli Prime Minister Benjamin Netanyahu’s speech with his country’s ambassador to the United States. Boehner asked the foreign dignitary not to tell the U.S. president.

U.S. Speaker of the House John Boehner listens as U.S. President Barack Obama hosts a bipartisan meeting of Congressional leaders in the Cabinet Room of the White House in Washington

House Speaker John Boehner listens as President Barack Obama hosts a bipartisan meeting of congressional leaders in the White House in Washington, January 13, 2015. REUTERS/Larry Downing

“I wanted to make sure,” Boehner later explained on Fox News, “there was no interference.” Netanyahu is now scheduled to address a joint session of Congress on March 3.

This is unheard of in U.S. history. American Congresses have sometimes rejected a president’s foreign policy, of course. That is within their rights.

Though the president has the power to negotiate agreements with foreign countries, the Senate can reject or approve them. President Woodrow Wilson, for example, journeyed to Paris in 1919 to negotiate the Treaty of Versailles after World War One. Wilson was instrumental in writing the treaty, particularly those sections that created a new institution, the League of Nations, to provide collective security.

When Wilson returned home, he conducted a whistle-stop campaign across the country to build support for the new league. But to no avail. The Senate was under the sway of isolationists. One influential senator, Henry Cabot Lodge, disliked Wilson personally. Wilson had also alienated the upper chamber because he took no senators with him to the peace talks. The Senate voted to reject the treaty. Its decision not to join the League of Nations may have been a mistake — but this was the Senate’s prerogative.

There is one key job, however, that the founding fathers assigned to the president alone. The Constitution says that the president “shall receive ambassadors and other public ministers” from foreign governments.

madison

James Madison. Courtesy of the Library of Congress

Why did the founders do that? According to Stanford University professor Jack Rakove, who won the Pulitzer Prize for his book on the subject, they entrusted that responsibility to the president for a specific reason: to facilitate bilateral negotiations on complicated matters on behalf of the United States.

Congress has the authority to declare war. The House and Senate hold the purse strings and represent the will of the entire nation. War is also a public, unilateral decision. It required only a “simple and overt declaration,” James Madison wrote in the notes he took at the Constitutional Convention.

In contrast, the president is charged with making peace — and “peace [was] attended with intricate and secret negotiations.” So the founders placed the president in charge of meeting with foreign ministers on delicate matters requiring discretion.

The founding fathers would be horrified by Boehner’s current actions. They had a passion for checks and balances. Madison, the father of the Constitution, distrusted power in the hands of mortal men. He feared both mob and monarchical rule.

So Madison and the founders — George Washington, Alexander Hamilton, Benjamin Franklin and the other 51 delegates who met at the Constitutional Convention in Philadelphia in 1787 — intentionally divided the federal government into three branches. The executive, legislature and judiciary each had its own powers and duties. In a few clearly defined situations, one branch could veto another’s decision.

The men who met in Philadelphia over that muggy summer of 1787 were anticipating situations precisely like the one now at hand.

US President Obama listens as Israeli PM Netanyahu delivers a statement in Washington

President Barack Obama (L) listens as Israeli Prime Minister Benjamin Netanyahu delivers a statement outside the Oval Office of the White House in Washington, September 1, 2010. REUTERS/Jason Reed

Obama is attempting to negotiate an end to the Iranian nuclear crisis. The United States is cooperating across the board with other world powers in this volatile, dangerous situation because nuclear escalation potentially affects every nation on the planet. The United States, Britain, China, Russia, Germany and France all have negotiators at the talks trying to keep the peace and persuade Iran to stand down.

Boehner disapproves. Or at least he wants Congress and the American public to hear Netanyahu’s advice on the matter at a formal meeting in the U.S. Capitol. Yet inviting the Israeli prime minister is an express — and entirely novel — breach of the Constitution.

Secretary of State Thomas Jefferson was first to reprimand a foreign dignitary for appealing to Congress over the head of the executive. When Edmond-Charles Genet, who represented the revolutionary government of France, sought congressional support in 1793 for a policy opposed by President Washington, Jefferson brought him up short. Even though Jefferson himself had great sympathy for France’s viewpoint.

The president, Jefferson wrote, “must be left to judge for himself what matters his duty . . . may require him to propose to the deliberations of Congress.” Or, as Washington said on another occasion, the Constitution designated him the “sole channel of official intercourse” with foreign nations.

EPSON scanner image

Thomas Jefferson, as secretary of state, portrait in U.S. Capitol. Courtesy of Library of Congress.

What’s the harm in setting a new precedent? History shows that the commander in chief has sometimes overstepped his bounds — or at least stretched them.

At the outbreak of World War Two in Europe, President Franklin Roosevelt signed an executive agreement with British Prime Minister Winston Churchill to trade U.S. naval destroyers for bases in the British West Indies. Newspaper editorialists labeled FDR “Dictator Roosevelt.”

In this situation and others, members of Congress sometimes complained that the president had exceeded his mandate as commander. Similar concerns during the Vietnam War led Congress to push back. It approved the War Powers Act of 1973 to rein in executive authority and reaffirm its own.

Our founders foresaw that the division of power invited competition. All sides would bump against the rules. So why shouldn’t Congress just do what it feels like? Take a flyer?

Improvising on the Constitution is not a smart idea. Boehner should rescind his invitation, or Netanyahu should RSVP his regrets, because willful law breaking chips away at America’s most precious possession, the true bulwark of our liberties.

This wise, sacrosanct document, the Constitution, is the one thing on which all political parties have agreed for more than 225 years.

Treasure it.

 

54 comments

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M.Lambert in the Guardian tells us that the words of Netanyahou no matters (http://www.theguardian.com/commentisfre e/2015/mar/02/netanyahus-supporters-dont -care-what-he-says) but the Israeli PM hopes to be recognized as the leader of his community somebody like a prophet. Zionism is on the brink to dictate every jew all around the world what is convenient for thinking and behaving.

Posted by meleze | Report as abusive

Tea partiers shove the Constitution in your face when reinforcing their view, disrespecting the Constitution for their means.

Posted by Flash1022 | Report as abusive

Well if Obama ignores the Constitution then why can’t Congress. Obama started this because Obama thinks the is a dictator. Obama is a president of polarization, not unity.

Posted by Hunter901 | Report as abusive

The author should be the Separation of Powers. The Legislative branch doesnt need the permission of the Executive.

Posted by Bruno1996 | Report as abusive

Separation of Powers. Beohner doesnt need King Obama’s permission

Posted by Bruno1996 | Report as abusive

HAHAHAHA – Well Boehner has a Pen and a Phone. He is tired of waiting for the President to do the right thing. So he is going to act. He has expanded his powers. This is what the people want. Recognize any of the preceeding statements Dems? Lawlessness breeds lawlessness. A fish rots from the head down. This is where the current reckless administration has taken us. Suck It!

Posted by Syntyr | Report as abusive

I always try to read both liberal and conservative view points and I question the statement in this article:

The founding fathers would be horrified by Boehner’s current actions. They had a passion for checks and balances. Madison, the father of the Constitution, distrusted power in the hands of mortal men. He feared both mob and monarchical rule.

Can anyone with such an educational background as the author make such a statement in her article after watching the past 6 years of this country’s ruling? I am not defending past Presidents but the hypocrisy of our Government both past and present leaves people scratching their heads? Where is the system of checks and balances for the past 6 years?

Posted by PGBoot | Report as abusive

Freedom to do dumb stuff is a fundamental right.

Posted by SaigonQ2 | Report as abusive

“Isolationist” is always the negative term put on those who would mind their own business and stop trying to take advantage of other countries.

What is unconstitutional is that the US “gubmint” takes our money forcefully by means of IRS thugs, then refuses to represent us- they vote however they want, based on promises of being enriched after office by Big Business. We as citizens have ZERO say in what our hard earned money is spent on- they buy the votes of the ignorant poor with more free benefits every year for those who refuse to work but keep having more kids.

Posted by LetBalanceCome | Report as abusive

Satire-right?
obama was informed before the invitation.

Posted by CindyBP | Report as abusive

Number is Israeli soldiers who served in Iraq: 0

Number is Israeli soldiers who served in Afghanistan: 0

Number of times per year Netanyahu whines that America doesn’t do enough for him: 438

No wonder Bohner and the republicans like Netanyahu so much. Born whiners.

Posted by AlkalineState | Report as abusive

It makes the US look bad when our own politicians behave poorly while trying dispense democracy. Nice, really, nice.

Posted by saturnman | Report as abusive

Would the Honorable Speaker of the House John Boehner please Describe the texture of the fabric in AIPACS back pocket

Posted by DJSanDiego | Report as abusive

Bruno1996 complains: “The author should read the Separation of Powers. The Legislative branch doesnt need the permission of the Executive.”

And Bruno should read the Constitution. Article II, Section 3, provides that “The President shall receive Ambassadors and other public Ministers.”

There is no such provision for Congress.

Posted by AlkalineState | Report as abusive

Alkaline State: Care to comment on the very next statement in Article II, Section 3, “he shall take Care that the Laws be faithfully executed”? Did you stop reading the section? Obama seems to only enforce the laws he likes.

Posted by gyg | Report as abusive

Mr. Obama has his cellphone and pen, congress invites foreign leaders to hear their side of he story.

Posted by zotdoc | Report as abusive

unconstitutional? what’s the problem?

whatever happened to: “I have a phone and a pen.”

Posted by Breadie | Report as abusive

Too many opinion pieces here written by leftists and Obama fans.

Posted by Potemkin | Report as abusive

Good piece.

Flash 1022 …. Boehner is not a Tea Party member. He’s a neo-con.

Posted by aeci | Report as abusive

Good article. So this article lays out the facts that the Speaker violated the Constitution with this invitation.

Posted by uc8tcme | Report as abusive

Hogwash!

Posted by Mustang81 | Report as abusive

Ron Dermer, the Israeli Ambassador cooked this one up.
NeoCon, Tea Party mashup.
I think Netanyahu is clever enough to know many of the ways this could go horribly wrong. Probably not for him so much as the majority in Congress. That crew never ceases to amaze.

TrEAson
PARTY

Posted by E_Fornaught | Report as abusive

So a strict Constitutionist. So what about Obama’s Obama’s unconstitutional actions in refusing to implement insurance benefits programs required in his Obamacare? What about his building a specific amnesty program that violates the immigration laws? I suppose that you regularly oppose his unconstitutional and dictatorial executive actions across the board.
And if your argument had any merit, no member of Congress could ever meet any foreign dignitary. And by your claims never has.
Truly silly.

Posted by BoomersView | Report as abusive

It is quite strange to read that in “country of free speech” is unconstitutional to invite someone to speech before democratically elected representatives of “the people”.

Posted by Chamomile | Report as abusive

The author of this article writes “The founding fathers would be horrified by Boehner’s current actions. They had a passion for checks and balances.”

I wonder if the founding fathers would be horrified by Obama’s overall current actions as president. They certainly would be horrified by the lack of respect for checks and balances by his administration.

The office of the president of the United States was NOT intented to be carried out as a one-man show.

Posted by AubonPain | Report as abusive

….by the way, if the president can have representatives from the muslim brotherhood as a guests, as well as consulting with al sharpton, for example, and considering the three branches of government are separate and equal, then I think Congress can have any guests and consultants of their choosing.

Posted by AubonPain | Report as abusive

Excuse me but.. what?? Went behind Obama’s back? When Barack Obama deliberately and repeatedly deceived and lied to Americans regarding his healthcare scheme lowering costs by $2500 and being able to keep your existing plan, (can also mention the video that caused the Benghazi massacre, the IRS targeting conservative organizations…) he became irrelevant as a president and leader. These weren’t simple “yes” when the truth was “no” type of lies, these were long winded, fictional storytelling, repeated lies that his own advisers said he should not tell. BTW, looking for all the articles on this site regarding Obama violating the constitution. Reuters is becoming as irrelevant as Barack Obama.

Posted by Blindtomato | Report as abusive

How much actual research was done before writing this? The link below shows that there is a history of foreign leaders and dignitaries addressing the House of Representatives, are you suggesting you have evidence that proves all of these were approved by the sitting President at the time?

http://history.house.gov/Institution/For eign-Leaders/House-Receptions/

Posted by theBrayn | Report as abusive

Absolutely, regardless of partisan politics in Article II the Constitution makes starkly clear that POTUS and POTUS alone is the designated Chief Diplomat and Arbiter of Foreign Affairs. A lack of cohesion between the legislative and executive branch on this issue (IRAN) can only impede any progress in the international community surrounding this issue.

Posted by TaylorDye | Report as abusive

We all know the ‘founding fathers’ would have been more horrified to learn Obama was the President than some picayune matter of protocol.

Posted by sangell | Report as abusive

Boehner is a victim of his own B.S.,just like his tea time buddies.

Posted by Amwatching2c | Report as abusive

The Logan Act (1 Stat. 613, 30 January 1799, currently codified at 18 U.S.C. § 953) forbids unauthorized citizens from negotiating with foreign governments. It was passed in 1799 and last amended in 1994.

Violation of the Logan Act is a felony, punishable under federal law with imprisonment of up to three years.

The Act is intended to prohibit United States citizens without authority from interfering in relations between the United States and foreign governments.

§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.
1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).

Posted by Eisenhower_USA | Report as abusive

Let’s have Putin over to tell us what to do with Ukraine.
Then Bohner can go over to China and tell them what to do with Tibet.

Posted by dublin13 | Report as abusive

Today’s headline:

“Netanyahu Visits America, Strokes GOPS’s Bohner.”

Posted by AlkalineState | Report as abusive

It would help Mr. Netanyahu’s credibility if Israel signed the NPT. No one has ever inspected Israeli nuclear sites while Iran has undergone repeated inspections and monitoring.

But Israel’s position is always “do as we say not, as we do.”

Do they really believe that about 6 million Israelis have the right to dictate the welfare and prerogatives of over 70 million Iranians or even the rest of the ME?

Times have changed and the Israeli’s are not the most sophisticated power in the ME anymore. And underhandedly contributing to the instability of many other ME regimes does not make their situation any safer.

Posted by paintcan | Report as abusive

Obama has trampled all over the Constitution, so who cares! John Boehner did what he thought was right by letting the American folks hear what is really going on. Obama keeps us in the dark. It is about time we as taxpayers and voters hear what was being kept quiet. Iran is a serious threat to the world’s security, something must be done to stop all this Mideast hatred and violence.

Posted by panilene | Report as abusive

There are three branches of government and you must be asleep at the wheel these past six years to not KNOW that this President is a dictator. He has never ONCE negotiated with the Republicans. He has been shot down twice last year by the Supreme Court. There are THREE branches of government and the President DOES NOT reign supreme. You must still be drinking that kool-aid. Over seventy percent of the American People believe, and rightly so, that Iran is a threat to the entire world. Nukes in the Middle east will be catastrophic for the Entire world. And this deal that the dictator in chief is negotiating gives Iran everything they want.

Your article twists the truth. Your article is like a campaign for a dictator. Just like the press that supported Hitler. No difference. Just like in the time of the Nazis.

Posted by Yasminaspeaks | Report as abusive

Let me guess you are a liberal right? am sick and tired of Lberal Democrats talking points! Where are your articles on the numerous times Obama has made decisions that go against the Constitution!!

Posted by cruiserray | Report as abusive

Somebody needs to be brought up on charges. The Logan Act (1 Stat. 613, 30 January 1799, currently codified at 18 U.S.C. § 953) is a United States federal law that forbids unauthorized citizens from negotiating with foreign governments. It was passed in 1799 and last amended in 1994. Violation of the Logan Act is a felony, punishable under federal law with imprisonment of up to three years. Wonder if Boehner can go without a drink for 3 years.

Posted by mjsmith | Report as abusive

Ms Hoffman tells us 3 times that the invitation to Netanyahu is unprecedented, and then she says that that invitation is an “express” breach of the Constitution. Yet she never cites any specific provision of the Constitution that is (allegedly) expressly violated by the invitation. This is an incredibly weak performance by Prof. Hoffman; I hope she does a better job teaching her students than she does here.

Posted by happyfella8 | Report as abusive

is this guy for real? this was not an official negotiation, just a speech. at no point does the constitution say that a foreign government official cannot give a speech to congress. this is stupid. furthermore, this is at a point when Obama has, literally, killed Americans without trial, has expanded the patriot act, and has nationalized the healthcare industry…..and congress having a speech is crossing the line? the author’s biases are showing.

Posted by whatsupmyhomies | Report as abusive

Treasuring our Constitution. What a glorious concept!
Perhaps someone could elaborate on the many ways our constitution has been treasured by this administration since taking office. I would very much appreciate the enlightenment.

Posted by deckie49 | Report as abusive

3 equal branches of the government.

Boehner did NOT need Obama’s permission to invite Netanyahu. He was well within his Constitutional authority.

Posted by jkpalmdale | Report as abusive

Constitution…Ha! This… The Onion? Funny….from day one not applicable to the Undocumented Foreign Usurper with a Stolen
SS # in The White House….When has the Constitution applied to the King Usurper’s actions… Anywho?

Posted by Bruce333 | Report as abusive

March 3rd,2015 The DAY of SHAME
On this day the republicans brought an outsider into AMERICA’S HOUSE to fight their FAMILY fight for them . Boehner brought a foreigner into AMERICA’S HOUSE to argue a FAMILY dispute. Those were not “standing ovations” …. they were yellow-bellied-groveling In front of the entire World the republican party groveled to an alien politician, in their desperate, failed, attempt to publicly shame the President of the United States. The republicans SHAMED America and destroyed what patheticly tiny scrap of honor congress had left. Only filthy cowards drag outsiders into a FAMILY arguement. Johnny Boehner could not even find enough testosterone to wait until after that disgrace, before he folded on his limp-wristed “stand” against ILLEGALs . Boehner folded on ILLEGALS as he was bringing in a FOREIGNER to fight his battles for him ….. The World is laughing in derision …… at republicans, not the PRESIDENT.

Posted by eddiexxx | Report as abusive

The Speaker of the House openly violated the so-called Logan Act that was signed into law and enacted in 1799 by President John Adams and codified in 18 U.S. Code § 953. The Code addresses precisely what Speaker of the House John A. Boehner did in conspiring with Netanyahu to address a joint session of Congress to defeat the measures of the United States in relation to any disputes or controversies with the United States.
The Logan Act prohibits any “Private correspondence with foreign governments” and reads; “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.” The Supreme Court ruled that Congress cannot and should not conduct foreign affairs; that power rests in the Executive Branch exclusively.
In the 1936 Supreme Court case, United States v. Curtiss-Wright Export Corp, the Court held that “all ability to conduct foreign policy is vested in the President. It is given implicitly and by the fact that the executive, by its very nature, is empowered to conduct foreign affairs in a way that Congress cannot and should not.” Boehner just does not, and Republicans cannot, accept that yes, “all ability to conduct foreign policy is vested in the President;” regardless of the fact he is an African American man or that Republicans’ allegiance is to a foreign power; in this case Israel.

Posted by Anonymous | Report as abusive

Iran is doing more to fight ISIS than any other country in the region. They have troops deployed to foreign nations, and they are LEADING the fight, on the ground. They kill ISIS people every single day. It’s not 1979 any more. Time to bury the hatchet with Iran and join them in their fight against Saudi-sponsored terrorism. We have been on the wrong side of this fight since Bush I.

Posted by AlkalineState | Report as abusive

Why not have the Justice Department to initiate action against Boehner for violation of the constitution.

Posted by WildWilli | Report as abusive

It’s NOT unconstitutional. There was no negotiation with Netanyahu. He was invited to speak. And the President may negotiate with the ADVICE and CONSENT of the Senate. The Senate may also interrogate the opposite side.

Posted by FanadFilms | Report as abusive

It might be easier to care if we had a president who gave a rip about the constitution as well.

Posted by cjnunya | Report as abusive

1. The Obama adminstration has no intention of bringing the Iranian nuclear “agreement” to the Senate for verification and approval — as required by the Constitution. Why? Because they have openly stated that discussions with Iran are not for the purposes of a treaty.

2. The Obama adminstration is actively evading their disclosure obligations to the American people. Multiple occurrences of this evasion are seen in the falsifying of public records by Cabinet offices such as the EPA adminstration and the State Department by the use of fake email accounts, fake email names by high officials and now wholly separate email servers housed in the personal residences of our highest officials. It doesn’t get more corrupt.

3. This whole facade of complaining about a speach is being furthered by a journalistic organization (Rueters — and others) that has not the decency or courage to pursue items 1 & 2 above.

What a disgrace.

Posted by rtrco | Report as abusive

Really? “The founding fathers would be horrified of boehners actions”. I expect a lot more from Reuters as one of the last free media outlets. The founding fathers would have picked up arms to fight the Obama administration. This weasel has shredded the constitution, ran in total opposition to the will of the people and endangered the lives of everyone on the planet. Once the political pendulum swings back in 2016, the new president will have unlimited powers because of the precedents that Obama has set. Thats why this president must be impeached in order to prevent laws by executive order, and the myriad of other treasonous bending and overstepping of our laws Obama has committed. We the people have lost so much of our power to the presidency now. It started with George bush, then went off the rails with Obama. This is why corrupt politicians like boehner will not impeach Obama, they are salivating at the thought of taking the presidency in 2016 with these new dictatorial powers.

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