Issue 1

Government’s Religious Hospitals

States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the origins of these curious institutions to dramatic transformations over the last forty years in the political economy of healthcare and the constitutional doctrine of church and state. At stake are the foundational commitments of secular government to equal citizenship and religious freedom.

Yet, constitutional litigation offers limited recourse. In an increasingly religious marketplace, only sustained attention to the political economy can reverse the confluence of church and state. This Article proposes strategies to unite religion law and political economy and to move from religious domination to pluralism and from discrimination to equality. As government-religious institutions proliferate beyond healthcare—in schools, prisons, police departments, and child-welfare agencies—reform efforts must take on broader trends toward consolidation, privatization, and religionization of the economy.

Introduction

Waking up in a hospital, you spy a religious painting at the foot of the bed. The doctors who rush in wear white coats with the names of a religious figure and of the state. Your treatment options, they tell you, must comply with the faith tradition. Clerics on the ethics committee will approve your care. As you recover, you learn that the government owns the hospital, pays the staff, and puts the state seal on the front of the building. On the board of directors, some seats are reserved for government bureaucrats, others for members in good standing of the Church.

This experience could describe hospital care in many countries around the world. But the United States is not known for such tight-knit relationships between any church and the state. Under the Establishment Clause, governments are not supposed to own or operate religious institutions. They are not expected to impose religious tests for public office or adopt a denomination as their own.

Nevertheless, they have. This Article reveals that across the country, church and state have fused in powerful entities that deliver critical services. The government’s religious hospitals are state-governed, state-run, and/or state-owned. But religion permeates their halls. Faith dictates their charitable missions and ethical decisions. Under the banner of the state, patients may be denied healthcare for religious reasons. Public employees must display religious messages and conform their conduct to religious rules. Positions of governance and leadership, typically open to all in public hospitals, are reserved for individuals who belong to particular sects.

Sometimes the state owns the religious institution outright—like the University of Alabama’s “faith-based health system”1 1.See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials].Show More with a mission of “witness[ing] to the love of God through Jesus Christ.”2 2.See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022).Show More Sometimes the religious and state entities become joint venturers—like Trinity Health and the University of Michigan, which agreed to run a hospital “consistent with the teachings of the Roman Catholic Church.”3 3.Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author).Show More Other times, a dense network of operational, managerial, or other relationships connects church and government—as at the University of Texas, the University of California, and numerous public health districts, where clinical staff and medical students must conform to religious teachings against abortion, contraception, fertility treatments, and LGBTQ-affirming care.4 4.See infra Section I.D.Show More

So how did we end up with institutions that so thoroughly merge public and religious? This Article argues that the answer lies in dramatic transformations in healthcare’s political economy and in Religion Clause doctrine over the last forty years. Neoliberalism made government-religious hospitals economically and politically attractive during a period when the Supreme Court’s erosion of the Establishment Clause made them legally plausible.5 5.Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism).Show More These institutions, joining government authority with religious domination, undermine religious freedom and threaten equal citizenship in a pluralistic society.

From the 1980s onward, policies favoring austerity and privatization became ascendant and decimated the public sector. Public hospitals—a mainstay of cities and a natural home for public universities’ medical faculties—closed their doors or privatized as governments divested.6 6.See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014).Show More Meanwhile, rising costs prompted private hospitals to engage in a relentless drive for revenue.7 7.See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”).Show More They merged and consolidated at an unprecedented and accelerating rate, nearly eradicating competition in hospital markets.8 8.See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”).Show More

But healthcare’s political economy tells only part of the story.9 9.We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020).Show More A contemporaneous revolution in Establishment Clause doctrine abandoned principles of separationism and invited more intensive church-state partnerships.10 10.See infra Section III.B.Show More Not long ago, the government-religious hospitals we describe would have encountered rather obvious constitutional obstacles.11 11.See infra Section III.A.Show More Under the First Amendment’s Establishment Clause, a “wall of separation” was supposed to hold church and state apart.12 12.Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009).Show More States nonetheless could fund religiously affiliated hospitals, provided they delivered secular healthcare services, refrained from discrimination in hiring, and committed to respecting their patients’ consciences.13 13.See infra notes 207–38 and accompanying text.Show More But in the last few decades, courts dismantled a number of constitutional constraints on aid to sectarian institutions. By the early 2000s, Establishment Clause doctrine aligned with neoliberal economic policies to galvanize public partnerships with faith-infused institutions. Privatization took on a religious hue.

Faced with demands for healthcare provision and education, cities, counties, and public universities stepped into this constitutionally unsettled space. And they found few options for partnership. No longer was it common to find the public hospitals that once hosted safety-net services and academic medicine. Trends toward consolidation, which escalated with each passing decade, left nearly all cities with highly concentrated hospital markets.14 14.Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ].Show More The secular options assumed by judges and policymakers had dwindled.

Often, commercially successful religious entities were among the few potential joint venturers and partners. Most commonly, those entities were Catholic. Due to their “hierarchy and interconnectedness,” as well as their longstanding significant market share, Catholic healthcare systems had proved well-positioned to consolidate market power as neoliberalism took off.15 15.Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020).Show More And these religious partners, once motivated to claim nondiscrimination, now typically insisted on a more thickly sectarian identity.16 16.Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals).Show More In this landscape, governments created new institutions where secular and sacred, public and private, share governance, ownership, and operation.

Depending on one’s point of view, the central problem of these hospitals might be privatization of public services, restriction of healthcare access, or discrimination based on sex. While we are concerned about each of these issues, our focus is on the threat to religious freedom as dominance in healthcare has been converted into religious domination backed not only by private power but by the authority of the government.17 17.For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983).Show More This confluence undermines equal citizenship and religious freedom in distinct and novel ways.

The promise of secular government is that equal membership in the political community will not depend on one’s religion and that the state will not impose religion on its citizens.18 18.See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950).Show More Government’s institutions will be open to all, controlled by the people, and able to give public reasons for decisions.19 19.See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same).Show More America’s religious churches and charities, by contrast, can serve co-religionists, discriminate in their choice of leaders, and give religious reasons that people of other faiths cannot understand.20 20.See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014).Show More

Government-religious hospitals upend this settlement and confound theories on both the left and the right about the relationship between church and state. Across the political spectrum, religion law scholars assume the existence of secular options and the absence of religious domination in the marketplace.21 21.See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”).Show More They broadly agree that equal membership in the political community cannot depend on one’s religion and that the state cannot prefer any denomination. One need not be a strict separationist to draw the line at a state institution that proclaims a denominational identity, imposes religious tests, and uses religious reasons.

The embrace of joint church-state institutions may not be inexorable. Preserving principles of secular government in an increasingly religious marketplace is still possible, if not through constitutional litigation, then by addressing broader trends toward consolidation, privatization, and religionization of the economy. This Article considers a range of concrete reform measures, from embracing competition policy to state provision of social services to transacting for church-state separation. In combination, these reforms would move, albeit incrementally, from religious domination toward pluralism and from religious preference toward equality.

This Article proceeds in four Parts. Examining articles of incorporation, asset purchase agreements, and management contracts, Part I explores the details of government-religious hospitals and presents a rough taxonomy of the forms they take. Parts II and III argue that major shifts in healthcare’s political economy and in Religion Clause doctrine over the last forty years together spurred the merger of church and state. The establishment of government-owned, -directed, and -operated religious hospitals came to threaten equal citizenship and religious freedom. Part IV turns to reforms. It demonstrates how antitrust enforcement, public options, and public utility regulation could reshape the political economy to remedy and forestall government-religious hospitals.

The setting of our law and political economy tale is the hospital sector, but evidence mounts that government-religious institutions may exist elsewhere. The legacy of neoliberalism, with its emphasis on privatization, drove and continues to drive religious-public collaborations—in schools, prisons, police departments, child-welfare agencies, and beyond.22 22.See infra notes 379–83 and accompanying text.Show More Alliances between religious and economic conservatives have generated transfers of public funds, services, and decision-making to religious institutions. And as in the hospital sector, seemingly unrelated changes in constitutional doctrine increasingly create a path toward merger of church and state.

  1. See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials]. ↑
  2.  See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022). ↑
  3. Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author). ↑
  4. See infra Section I.D. ↑
  5. Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism). ↑
  6.  See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014). ↑
  7.  See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”). ↑
  8. See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”). ↑
  9. We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020). ↑
  10. See infra Section III.B. ↑
  11. See infra Section III.A. ↑
  12. Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009). ↑
  13. See infra notes 207–38 and accompanying text. ↑
  14. Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ]. ↑
  15. Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020). ↑
  16.  Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals). ↑
  17. For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983). ↑
  18.  See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950). ↑
  19. See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same). ↑
  20. See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014). ↑
  21. See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”). ↑

  22. See infra notes 379–83 and accompanying text. ↑

Searching for a Meaning: The Enigmatic Interpretation of Virginia’s Statutory Ban on Warrantless Searches

The modern U.S. Supreme Court tells us that the touchstone of the Fourth Amendment is reasonableness. That proposition flows logically enough from the Amendment’s text and helps explain why there are so many situations in which law enforcement does not need to obtain a warrant before conducting a Fourth Amendment search. Individuals in Virginia, however, are protected not only by the Fourth Amendment but also under state law. And Section 19.2-59 of the Code of Virginia contains a ban on searches without a warrant, subject only to exceptions in the enforcement of game and marine fisheries laws—rather, that is what Section 19.2-59 seems to say it contains. In practice, the Supreme Court of Virginia has for decades interpreted the statute to provide the same protections as the Fourth Amendment, despite the stark differences between the two texts.

This Note’s first contribution is to explore that discrepancy. It documents how Section 19.2-59 was first passed during the Prohibition Era as part of a backlash to overly intrusive searches by law enforcement agents. It reveals that the Supreme Court of Virginia was originally willing to credit the statute’s plain meaning and interpret it as offering broader protections against unreasonable searches than the common law. In the middle of the twentieth century, however, the court began to misread those early cases, leading to the current understanding of the law that is divorced from its plain meaning. The history of Section 19.2-59 thus raises difficult questions of statutory interpretation. This Note’s second contribution is to identify those questions and begin articulating what the contemporary meaning of Section 19.2-59 should be.

Introduction

“Because we can only administer the law as it is written, the interpretative principle that precedes all others is that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says . . .’.”1 1.Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)).Show More

Kenneth Wilson was pulled over as he drove through Chesterfield County, Virginia, on the evening of March 29, 2019.2 2.Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020).Show More The officer who commenced the stop did not initially give any reason for doing so. But after running Wilson’s license and registration, he ordered Wilson to step out of his car.3 3.Id. at *2.Show More Wilson responded by asking why he had been pulled over. The officer told Wilson that his headlight was out and opened the driver-side door. Wilson remained seated. The officer quickly repeated the order three more times, but Wilson did not budge. Then, without warning, the officer punched Wilson in the face and yanked him out of the car.4 4.Id.Show More

Once Wilson was restrained, the officer informed him that he had ordered Wilson to exit the vehicle due to the smell of marijuana.5 5.Id.Show More Wilson was patted down and escorted away. The officer then searched his car and found marijuana. In subsequent criminal proceedings, the Chesterfield County General District Court ordered that the drugs be suppressed.6 6.Id.Show More

Wilson sued the officer under both federal and state law seeking half a million dollars in compensatory and punitive damages. In considering the officer’s motion to dismiss, the U.S. District Court for the Eastern District of Virginia noted that one of the state law claims was for “unlawful search in violation of Virginia Code § 19.2-59.”7 7.Id.Show More The court did not take long to resolve the claim, simply noting that it “rel[ies] on the absence of probable cause” and citing to a 1968 Supreme Court of Virginia case in support of the proposition.8 8.Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)).Show More In Wilson’s case, the court reasoned, the smell of marijuana gave the officer probable cause that there was contraband in the vehicle. The Section 19.2-59 claim was accordingly dismissed.9 9.Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam).Show More

At first glance, the decision appears unremarkable. Yet it is notable for what the court did not do: consider the text of Section 19.2-59 of the Code of Virginia. If it had, the court would have needed to concede that the provision says nothing about probable cause. Instead, Section 19.2-59 seems to plainly prohibit the type of warrantless search that Wilson’s car was subject to. The statute starts with a simple command:

No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer.10 10.Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.Id.Show More

That general prohibition is subject to an exception allowing for the warrantless searches of vehicles—but only when such searches are carried out in the enforcement of Virginia’s game or marine fisheries laws.11 11.Id.Show More The limited exception seems to further Wilson’s case, giving rise to a negative inference that warrantless automobile searches in all other contexts are prohibited.12 12.See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressiouniusestexclusioalterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)).Show More

The perfunctory treatment Section 19.2-59 received in Kenneth Wilson’s case is not unusual. In fact, Section 19.2-59 and its seemingly near-total ban on warrantless searches have gone almost entirely overlooked both in practice and in the literature. In practice, the statute is interpreted to offer the same protections as the Fourth Amendment,13 13.The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV.Show More despite the fact that the Amendment allows for a large portion of law enforcement searches to occur without a warrant.14 14.See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”).Show More Section 19.2-59 is also understood to create a cause of action against law enforcement officers akin to that found in 42 U.S.C. § 1983.15 15.See infra Subsection I.B.2.Show More In the literature, the statute’s origins, development, and interpretation by courts have never been explored.16 16.A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”).Show More

This Note seeks to change that. Part I summarizes the current state of the law on illegal searches in Virginia under the Fourth Amendment, Section 10 of the Virginia Declaration of Rights,17 17.Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10.Show More and Section 19.2-59. Part II explores the history of Section 19.2-59.18 18.Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity.Show More It reveals the statute was originally enacted in 1920 as part of a larger bill meant to rein in the searches of state prohibition officers. Although the statute has been amended several times since, much of its substance remains the same as it was in 1920. Part III first analyzes how the Supreme Court of Virginia19 19.The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court.Show More interpreted Section 19.2-59 in the years immediately following its enactment. It then documents how, in the latter half of the century, the court misread those earlier cases, leading to the current application of the statute that departs not only from its text, but also from how it was originally understood by courts. Finally, Part IV makes a preliminary attempt at answering several questions raised by the analysis in Parts II and III.

  1. Appalachian Power Co. v. State Corp. Comm’n, 876 S.E.2d 349, 358 (Va. 2022) (internal quotation marks omitted) (first quoting Coalter v. Bargamin, 37 S.E. 779, 781 (Va. 1901); and then quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006)). ↑
  2. Wilson v. Painter, No. 3:20cv645, 2020 WL 7497801, at *1 (E.D. Va. Dec. 21, 2020). ↑
  3. Id. at *2. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. at *8 (citing Carter v. Commonwealth, 163 S.E.2d 589, 592 (Va. 1968)). ↑
  9. Id. at *8–9. Wilson did not challenge the court’s dismissal of the § 19.2-59 claim on appeal. Wilson v. Painter, No. 21-1083, 2021 WL 5851070, at *1 n.1 (4th Cir. Dec. 9, 2021) (per curiam). ↑
  10. Va. Code Ann. § 19.2-59 (2022). The rest of the statute reads:Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.

    Id. ↑

  11. Id. ↑
  12. See Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 487 (Va. 2016) (“In interpreting statutory language, we have consistently applied the time-honored principle expressio unius est exclusio alterius . . . . Under this maxim, when a legislative enactment limits the manner in which something may be done, the enactment also evinces the intent that it shall not be done another way.” (internal quotation marks and citations omitted)). ↑
  13. The Fourth Amendment to the U.S. Constitution reads:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV. ↑
  14. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.1(b) (6th ed. 2020) (providing an overview of the instances in which police are permitted to conduct a search without a warrant under the Fourth Amendment, including the exigent circumstances exception, the automobile exception, consent searches, inventory searches, and searches incident to arrest); Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 435, 467 (4th ed. 2020) (“Taken individually, these exceptions may seem narrow enough. Cumulatively, the exceptions may be the rule—and warrants the real exception.”). ↑
  15. See infra Subsection I.B.2. ↑
  16.  A review of the secondary sources citing § 19.2-59 on Westlaw and Lexis+ reveals a smattering of treatises and journal articles that mention the statute. That literature has given only cursory consideration to the law. See, e.g., Robert S. Claiborne, Jr., Comment, Commonwealth and Constitution, 48 U. Rich. L. Rev. 415, 423, 423 n.38 (2013) (calling it “troubling” that § 19.2-59 “does not plainly impose the same Fourth Amendment requirements, but Virginia courts have construed [it] to do so”); John L. Costello, Virginia Criminal Law and Procedure § 35.6 (4th ed. 2008) (“This statute was enacted in response to public outcry during the Prohibition Era and has been consistently held to be coextensive with the Fourth Amendment . . . .”). ↑
  17. Section 10 of the Virginia Declaration of Rights is the search-and-seizure provision in the Virginia Constitution. It reads:That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.Va. Const. art. I, § 10. ↑
  18. Although § 19.2-59 did not obtain its current place in the Code of Virginia until 1975, see Act of Mar. 22, 1975, ch. 495, 1975 Va. Acts 846, 856–57, this Note refers to earlier versions of the provision as “Section 19.2-59” for clarity. ↑

  19. The modern-day Supreme Court of Virginia was known as the “Supreme Court of Appeals” until 1970. 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia 704 (1974). For clarity, this Note refers to the court by its current name when referencing decisions of the pre-1970 court. ↑

The Runaway Presidential Power over Diplomacy

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. These are just a few of many examples from recent years. The President’s assertedly exclusive powers over diplomacy have become a powerful yet rarely critiqued tool for withholding information from Congress and for rebuffing congressional supervision over the content and agents of international engagement.

This Article interrogates the constitutional concept of “diplomacy”—a word that, for all the emphasis the executive branch now puts upon it, was barely an English word at the time of the Framing and was not used during the Constitution’s drafting and ratification. Both structural reasoning and historical practice suggest that exclusive presidential powers over diplomacy should have a narrower ambit than executive branch lawyers currently claim. The Article excavates several forgotten limits on these powers. One is the distinction between policy and negotiation. The executive branch asserts exclusive power over both, but Congress has strong counterclaims to a constitutional power to establish policy objectives and to control outputs, such as votes in international organizations. Another limit relates to domestic-facing administrative agencies, which increasingly engage in regulatory coordination abroad. Both Congress’s traditional role in supervising agencies and the substance of these agencies’ work suggest that their international engagement should not necessarily partake of whatever exclusive powers the President holds over diplomacy and instead should be more subject to congressional control. The Article closes by proposing a distribution of power over international engagement that provides more control to Congress and by identifying institutional strategies that Congress could deploy to achieve this distribution.

Introduction

A core assumption of the executive branch is that the President possesses exclusive constitutional powers with respect to diplomacy. The White House and the Department of Justice routinely invoke these asserted powers to rebuff congressional interventions in foreign affairs. In 2020, for example, the Trump administration declared that Congress cannot specify that “[i]t is the policy of the United States” to help foreign allies combat corruption; cannot require the executive branch to give it notice prior from withdrawing from an important arms-monitoring treaty; and cannot require the Secretary of Commerce to provide Congress with a report on its use of statutorily delegated authority with respect to tariffs.1 1.Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020].Show More For executive branch lawyers, the “President’s exclusive prerogatives in conducting the Nation’s diplomatic relations are grounded in both the Constitution’s system for the formulation of foreign policy, including the presidential powers set forth in Article II of the Constitution, and in the President’s acknowledged preeminent role in the realm of foreign relations throughout the Nation’s history.”2 2.Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language).Show More

These sweeping claims fit poorly with our broader constitutional framework. As Justice Jackson famously instructed, assertions of exclusive presidential power “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”3 3.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring).Show More Yet the exclusive diplomatic powers claimed by the President have gone largely unexamined. With the exception of one recent decision focused on the power to recognize foreign nations, the Supreme Court has not confronted these issues.4 4.Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally).Show More Among scholars as well, the diplomatic powers occupy a distant back seat to two other major constitutional powers in the field of foreign relations law: the war powers and the treaty powers.5 5.The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54 (2002) (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law).Show More While countless articles explore these two domains, there is relatively little scholarship on the diplomatic powers.6 6.For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J. 907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61.Show More This remains true even as the executive branch has come over time, especially since the late 1980s, to invoke these assertedly exclusive powers more widely, stridently, and meaningfully.

The first task of this Article, therefore, is to provide a comprehensive account of exclusive diplomatic powers claimed by the President. Simply put, the scope of these asserted powers is breathtaking. When executive branch lawyers speak of exclusive power over “diplomacy,” they are actually sweeping together a bundle of five discrete powers. These are: the power to represent the United States abroad; the power to recognize foreign nations; the power to determine the content of diplomatic communications; the power to select the agents of diplomacy; and the power to control access to diplomatic information. Each of these powers has its own constitutional pedigree and implicates different institutional values. The first two of these powers are well-established but narrow, while the latter three are deeply contested and dangerously broad. The exclusive power asserted over content, for example, is routinely claimed to encompass total control over the “time, scope, and objectives” of negotiations.7 7.Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E](using similar language).Show More And it reaches not just talk but also actions, such as the casting of U.S. votes within international organizations. When Congress issues mandates that run counter to these claims of exclusive executive power, the executive branch simply needs to get a legal opinion from the Department of Justice’s Office of Legal Counsel (“OLC”) to have its way.

Further underlying all claims of the “President’s exclusive power to conduct diplomacy”8 8.OLC Opinion of Sept. 19, 2011, supra note 2, at 116.Show More is an exceptionally capacious conception of “diplomacy.” Whether the subject is war or science, whether the forum is an international organization or a bilateral meeting, whether the executive branch officials involved are traditional diplomats or insurance regulators—all is “diplomacy” to the executive branch and therefore not subject to congressional control.9 9.E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry).Show More As OLC has put it in finding that Congress cannot prevent a technology-focused agency from negotiating with Chinese counterparts, “We have described the President’s authority over international negotiations as extending to any subject that has bearing on the national interest.”10 10.OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted).Show More

This panoramic conception of “diplomacy” greatly expands the already substantial executive branch powers claimed over diplomatic content, agents, and information. Yet as this Article shows in its second overall contribution, this conception is far from constitutionally foreordained. Indeed, the word “diplomacy” itself was barely an English word at the time of the Framing and does not appear to have been used at all during the many debates surrounding the Constitution’s drafting and ratification.11 11.See infra note 100 and accompanying text.Show More Rather, at that time, there was at most a sense that the President had certain constitutional prerogatives with respect to the negotiation of treaties, which in turn would ultimately require the advice and consent of the Senate. And as the United States came over time to engage in many forms of international engagement other than treaties, Congress left most management with the executive branch but periodically claimed control over aspects of this engagement.

In particular, I identify four ways in which Congress has asserted control in the past over aspects of U.S. international engagement in ways that undermine the broad view of “diplomacy” adopted by today’s executive branch lawyers. These four ways can be thought of as lost limits on exclusive presidential power over diplomacy. These limits are in addition to the very important power of Congress to control the implementation (or non-implementation) of most U.S. commitments as a matter of domestic policy—a power which the executive branch continues to acknowledge as belonging to Congress.12 12.For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017).Show More One limit was structural: to view the President as having exclusive power over the process of negotiation and the specific instructions given to negotiators, but to consider Congress entitled if it wished to form foreign policy objectives on the front end and to control acts with international legal significance at the back end. A second limit was content-based: to define “diplomacy” as encompassing only issues involving certain subject matters or above certain thresholds of importance. A third limit was institutional: to exclude domestically focused agencies from the ambit of “diplomacy,” such that Congress could exercise its usual level of control with respect to their activities abroad and with respect to how they interfaced with other executive branch actors regarding international engagement. A fourth limit developed from the rise of international organizations, as Congress initially claimed and exerted greater control as a price for supporting U.S. entry and participation in these organizations.

This nuanced and complex history has no place in OLC’s current approach to the diplomatic powers. Rather, by selectively invoking early sources and reading them out of context, OLC gives the impression that the exclusivity of the whole bundle of the President’s diplomatic powers is longstanding, firmly settled, and plainly applicable to all forms of modern foreign relations. The Trump administration took this perspective to its logical extreme, repeatedly invoking diplomatic powers in letters objecting to draft bills and in several important refusals to obey congressional mandates.13 13.See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement).Show More Yet while the Trump administration was unusually truculent, its understanding of the diplomatic powers flowed from OLC memoranda written during both Democratic and Republican administrations of the prior few decades that overread sources, ignored historical practice at odds with their positions, and failed to grapple with the profound changes in U.S. international engagement from the time of the Framing to the present.

Given the thin foundations of executive branch claims, congressional power over international engagement is ripe for reinvigoration. The final goal of this Article is to consider how such reinvigoration could be accomplished. This is not an easy avenue of inquiry, and it does not lend itself to any very satisfying solution. Doctrinally, I argue in favor of an intermediate approach between the extreme positions staked out by the executive branch and an alternative of complete congressional supremacy. There are a number of possible ways to accomplish this, and I offer some suggestions in the spirit of opening bids. Specifically, I suggest using two of the lost limits on “diplomacy” to achieve a more tempered balance—limits that draw on historical practice, respond to functional changes in U.S. foreign relations since the Framing, and emphasize the core structural concept of checks and balances. The first is to acknowledge congressional power to set policy objectives at the front end and to mandate certain outcomes at the back end (such as votes cast in international organizations) for negotiations whose outcomes will not otherwise be brought to the Senate or Congress for approval. The second is to treat congressional supremacy over domestic-focused agencies as constant with respect to both the domestic and foreign activities of these agencies. The use of these limits would rein in the risks of runaway presidential power over the content, agents, and information associated with U.S. international engagement.

Especially in the last thirty years, the executive branch has used its institutional power to make constitutional fictions about diplomacy into practical realities. For Congress to regain constitutional clout, it must bring its own institutional power to bear. The groundwork has already been laid by Congress’s repeated willingness to enact statutory provisions asserting control over diplomacy. The challenge for Congress is in getting the executive branch to recognize these provisions as binding as a matter of constitutional law. Broadly speaking, Congress can pursue three strategies towards this end. First, congressional committees can develop their own accounts of the constitutional allocation of the diplomatic powers through hearings and reports. Second, Congress can raise the stakes of executive branch non-compliance through legislative tactics, such as anti-severability provisions that require the executive branch to obey mandates whose constitutionality it questions if it wishes to continue to receive related appropriations. Third, Congress can seek to involve the courts. This last strategy has both the highest risks and rewards and therefore should be pursued with particular care.

I focus in this Article on the distribution of constitutional power with respect to diplomacy, broadly defined. But the account given here contributes more generally to the literature regarding the separation of powers. One contribution goes to the existing literature on the role of OLC. The findings in this Article support those that view OLC as an enabler of exclusive presidential power—and further suggest that the very transparency with which OLC expresses its views helps rather than hinders this enabling. Another contribution is to complicate some core assumptions about the role that historical practice plays in separation-of-powers disputes. While historical practice is often thought to be a tool of presidential power, it is notable how much historical practice there is—albeit uncited by OLC—that supports Congress’s authority to issue mandates with respect to international engagement. This suggests that, as a structural matter, historical practice may favor findings that Congress and the President have concurrent powers rather than findings that either branch has exclusive powers. Finally, this Article serves as a reminder of how much work needs to be done at the intersection of foreign relations law and administrative law. Tropes like “diplomacy” conceal complex questions about the allocation of powers in a world in which there is no robust divide between what is foreign and what is domestic.

The rest of this Article follows the path described above. Part I categorizes the diplomatic powers into five discrete powers—power over representation, recognition, content, agents, and information. Although Congress disputes the executive branch’s claims to exclusive powers over the last three of these powers, the executive branch has institutional advantages that enable it to disregard congressional mandates. Part II shows that OLC has supplemented the breadth that comes with these five powers with depth—by defining “diplomacy” far more broadly than is warranted by evidence from the time of the Framing, historical practice, or structural constitutional principles. It identifies four lost limits on the constitutional concept of “diplomacy,” of which one is structural, one is based in subject matter, one is institutional, and one is tied to the special status of international organizations. Part III proposes a doctrinal allocation that provides more control to Congress and identifies institutional strategies that Congress could deploy to achieve this distribution. It also notes several broader implications that this Article holds for the study of the separation of powers.

This Article focuses on the constitutional conflict between Congress and the Presidency with respect to control over diplomacy. With this focus come inevitable limitations, two of which deserve specific mention. First, some of the power struggles described here—particularly regarding control over agents and information—are entwined with broader constitutional questions about the extent to which Congress can control the structure of the executive branch and demand information from it. I do not address these questions, but rather focus on the extent to which power struggles relating to control over international engagement do or should differ from the broader baseline, whatever it is. The second limitation is that I focus on legal claims rather than on policy outcomes. It is possible and indeed often the case that the executive branch will object on principle to a legislative provision related to diplomacy even where it is either in full agreement with the policy set forth in this provision—or willing to adhere to this policy in practice to placate members of Congress. But while these factors reduce the practical effect of constitutional disagreements, they are not full substitutes for the constitutional allocation of control. One of the many grim lessons left over from the Trump administration is that law rather than norms can be the only boundary between action and constraint.

  1. Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020]. ↑
  2. Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language). ↑
  3. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring). ↑
  4. Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally). ↑
  5. The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54
    (2002)

    (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law). ↑

  6. For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J
    .

    907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61. ↑

  7. Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E] (using similar language). ↑
  8. OLC Opinion of Sept. 19, 2011, supra note 2, at 116. ↑
  9. E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry). ↑
  10. OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted). ↑
  11. See infra note 100 and accompanying text. ↑
  12. For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017). ↑

  13. See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement). ↑

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