Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional. See also the posts by David Bernstein and Peter Spiro.
Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”
Seth argues for a strict reading of ambassador and public minister. He argues that Netanyahu is neither an ambassador nor a public minister. An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’” He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power). See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power). As a reading of the language, Seth’s argument here is quite plausible.
Mike contends for a broader reading of “other public minister.” To support this, he writes that “the alternative would be a strange result: that the President would receive the Israeli ambassador, but not Israel’s head of government.” What type of argument is this strange result claim? One might interpret it as a purpose argument – the purpose of the Clause is to have the President receive representatives of foreign governments and the head of the government is the chief representative.
Is this a legitimate use of a purpose argument for a textualist? In my view, so long as one reads “other public minister” as ambiguous – as having this as one of its meanings – then it is legitimate. Even if Seth’s proposed meaning is the stronger reading of the language (without reference to the purpose), this purpose argument might shift the result toward’s Mike’s reading so long as one concludes this purpose argument is sufficiently strong.
Is this language ambiguous? One can imagine Seth denying it is. The language sets forth ambassadors and then includes “other public ministers” as similar but lesser officials. But Mike might reply that the reason ambassador is singled out is because it was the most common representative, not that it was the highest representative.