The signal is viewed by foreign governments AND the process avoids the perception of Congressional partisanship.

In the US constitutional system, the executive branch generally conducts foreign relations. But in recent years, the nonexecutive branches--the judiciary and Congress--have challenged the exclusivity of the president's authority to conduct foreign relations by opening direct channels of communication with foreign governments' executive branches. For example, in January 2015, Speaker of the House John Boehner invited Israeli Prime Minister Benjamin Netanyahu to address Congress, breaking protocol by failing to coordinate with the White House. Two months later, forty-seven Republican senators, led by Senator Tom Cotton, penned a letter to the leaders of Iran in an attempt to undermine the executive branch's negotiations to halt Iran's nuclear program. More recently, Senator John McCain independently reached out to the Australian ambassador to smooth over relations after President Donald Trump "abruptly ended" a call with Australian Prime Minister Malcolm Turnbull.

These contacts challenge conventional understandings about the constitutional separation of powers. Although the judiciary decides cases related to foreign affairs, and Congress exercises fiscal, treaty, and other powers that affect foreign relations, generally the executive branch actually conducts foreign relations, interacting directly with representatives of foreign governments' executive branches. The Netanyahu invitation and other examples deviate from this model. Moreover, courts, Congress, executive officials, and commentators lack a framework--much less an agreed-upon framework--for assessing whether the actions nonetheless comply with the Constitution.

Actors within and outside the three branches of government often analyze separation-of-powers disputes using the tripartite framework set out in Justice Robert Jackson's concurring opinion in Youngstown Sheet & Tube Co v Sawyer. Jackson's Youngstown framework assumes, however, that the action in question is an executive action that must be judged in light of Congress's approval, silence, or disapproval. The Netanyahu invitation and other examples disrupt this assumption: their defining feature is the initiative exercised by the nonexecutive branch in engaging in direct contacts with foreign governments.

Building on the Netanyahu invitation, the Cotton letter, and additional historical and recent examples, this Article identifies "nonexecutive conduct of foreign relations" as a discrete category of constitutional questions and then proposes a "converse Youngstown" framework for resolving separation-of-powers disputes when the branch whose actions are at issue is Congress or the judiciary.

Nonexecutive conduct of foreign relations occurs when a nonexecutive branch--the courts or Congress--engages in or takes actions that result in the opening of a direct channel of official communications between the US nonexecutive branch and a foreign executive branch. Although the courts and Congress often take actions that affect foreign policy, the direct conduct of relations with foreign governments has long been understood as the province of the executive. It is precisely the incongruity of conduct that would be considered diplomacy if done by executive officials being undertaken by nonexecutive officials that renders the actions constitutionally suspect.

The need to determine the constitutionality or unconstitutionality of nonexecutive conduct of foreign relations (or "nonexecutive foreign relations," for short) is rendered more urgent because several factors suggest that the phenomenon is likely to become more frequent going forward. Most basically, technology has made international communications easier, and, as other scholars have noted, technology facilitates the formation of horizontal transnational government networks between US government entities and their foreign counterparts. It does the same for the diagonal transnational networks--that is, Congress to foreign executives and the judiciary to foreign executives--at issue in nonexecutive foreign relations. Foreign governments have also become more sophisticated about disaggregating the US government. Increased familiarity with the US policy process allows foreign governments to forum shop, reaching out to potentially sympathetic audiences in US government entities other than their traditional State Department interlocutors. Perhaps most importantly, the hyperpartisanship that dominates US political discourse, especially when combined with the Trump administration's perceived incompetence at and inattention to diplomacy, will incentivize US officials outside the executive branch to reach out to foreign governments. It may also incentivize foreign officials to seek interlocutors outside the executive branch in order to hedge their bets by engaging broadly with actors across the US political spectrum.