Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The question concerning whether Congress shares with the President the right to recognize new states was prominently raised in connection with Cuba’s successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the subject. The Committee concluded in a memorandum that “[t]he executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties,” and that “[i]n the department of international law, . . . a Congressional recognition of belligerency or independence would be a nullity.” 1

The Committee reasoned that the recognition of independence or belligerency of a foreign power “is distinctly a diplomatic matter” evidenced “either by sending a public minister to the government thus recognized, or by receiving a public minister therefrom.” 2 The reception of a foreign envoy, the Committee stated, “is the act of the President alone.” 3 The next step of sending a public minister to the nation thus recognized, is likewise “primarily the act of the President.” 4 The Committee noted that the Senate can take no part in the selection at all until the President has sent in a nomination, and upon such nomination, act “in its executive capacity, and, customarily, in ‘executive session.’” 5 Because “[f]oreign nations communicate only through their respective executive departments,” their legislative departments’ resolutions upon diplomatic matters “have no status in international law.” Thus, while Congress can help the Cuban insurgents by legislation in many ways, “it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct.” 6

Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by arguing that at that point, diplomacy had come to an end, after the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and as part of the exercise of that power, it has the right to state the purpose of the war which it was about to declare.7

After Cuba, numerous presidents had occasions to exercise their power to recognize—or in some cases, not recognize—new foreign states or governments. The recognition of the Union of Soviet Socialist Republics in 1933, for instance, was an exclusively presidential act. President Woodrow Wilson, early in 1913, refused to recognize Provisional President José Victoriano Huerta as the de facto government of Mexico, thereby contributing materially to Huerta’s downfall the year following. President Wilson also announced a general policy of nonrecognition of any government founded on acts of violence. While he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. President Herbert Hoover’s Administration similarly refused in 1932 to recognize the independence of the Japanese puppet state of Manchukuo. The People’s Republic of China (PRC) likewise remained unrecognized from President Harry Truman’s Administration until President Richard Nixon’s de facto recognition through a 1972 visit, not long after the People’s Republic of China was admitted to the United Nations and Taiwan excluded. President Jimmy Carter’s official recognition of the PRC became effective on January 1, 1979.8 The earlier nonrecognition of the PRC proved to be an important part of American foreign policy during the Cold War.9

Footnotes

1

S. Doc. No. 56, 54th Cong. 20–22 1897).

2

Id.

3

Id.

4

Id.

5

Id.

6

Id.

7

Senator Knute Nelson of Minnesota said: The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power—the highest power given under the Constitution—we have the right, the intrinsic right, vested in us by the Constitution, to say how and under what conditions and with what allies that war-making power shall be exercised. 31 Cong. Rec. 3984 (1898).

8

Joint Communique of the United States of America and the People’s Republic of China (Jan. 1, 1979).

9

President Carter’s termination of the Sino-American Mutual Defense Treaty (SAM Defense Treaty) with Taiwan, which precipitated a constitutional and political debate, was perhaps an example of nonrecognition or more appropriately derecognition. The Supreme Court declined to hear a challenge to whether President Carter could unilaterally terminate the SAM Defense Treaty absent Senate consent. Goldwater v. Carter, 444 U.S. 996 (1979) (per curiam) (holding that the case was not justiciable). On recognition and nonrecognition policies in the post-World War II era, see Restatement, Foreign Relations, §§ 202, 203.