Academic

Reinstein on the Original Understanding of the Recognition Power

By Lawrence Solum

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted Recognition: A Case Study on the Original Understanding of Executive Power on SSRN. Here is the abstract:

This article focuses on a question never before examined in the literature: what evidence is there that those who participated in the drafting and ratification of the Constitution understood that a plenary recognition power was being vested in the president?

For at least a century, presidents have used the recognition power as an important tool in conducting and determining the content of the nation?s foreign policy. Although most exercises of presidential power have generated heated disputes between pro-presidentialist and pro-congressionalist scholars, there is little dispute about the recognition power. A string of Supreme Court decisions, dating back at least to 1937, states that recognition is a plenary power of the President; and scholars have both influenced and fallen into line with this view. Given this long historical stamp of approval, it may seem predictable that there has been little written questioning whether there is an originalist basis for a plenary executive recognition power.

Yet the Constitution does not mention recognition, and it is easier to assert the existence of Executive power than to identify its source. After dismissing textualist arguments for the recognition power, this Article proceeds to a detailed originalist inquiry. Obtaining recognition from and establishing diplomatic relations with European countries were central aims of Congress during the War of Independence and Confederation period. Given this historical experience, which demonstrated the importance and dangers of the recognition power, one would expect that this subject would have been a matter of special attention in the Constitutional Convention and ratification debates. Yet, although the Anti-Federalists attacked, and the Federalists defended, every power that was thought to be vested in the President by the Constitution, there is no discussion, in all of the voluminous records that we possess, of either of the receive ambassadors or executive vesting clauses as being a source of executive power ? and no discussion at all of the power to recognize foreign states or governments.

The conclusion of this paper is that there is no originalist justification for a plenary executive recognition power. On the other hand, the article proposes an explanation for the founders? silence that also precludes a firm conclusion that this power was deliberately denied to the President. The founders left a void in the Constitution.

Full post as published by Legal Theory Blog on October 13, 2010 (boomark / email).