Are special envoys getting special treatment from Congress? 

It’s a common tactic in Washington for administrations to bury news on a Friday or before a holiday, when presumably few are paying attention. Such is the case with the State Department’s announcement last week of Jamie Rubin as special envoy and coordinator for the Global Engagement Center and Joe Kennedy III as special envoy to Northern Ireland. 

While these individuals may be well-qualified for their posts, it’s curious that the administration announced these appointments right before a provision in the FY2022 National Defense Authorization Act kicks into effect on Jan. 3, requiring special envoys reporting to the Secretary of State to be confirmed by the Senate.

The role of a special envoy can be an important one, particularly when urgent national security issues are at stake, or to lead diplomacy with countries with whom the United States does not have formal diplomatic relations. In past administrations, the State Department has tapped senior diplomats as special envoys and special representatives for dangerous countries like North Korea, Syria, Venezuela and Iran. 

Additionally, envoys have been appointed to lead on transnational or regional issues where the need to coordinate across portfolios can advance U.S. diplomacy and interests. For example, our organization, the Jewish Institute for National Security of America, recommended the creation of a special envoy for the Eastern Mediterranean to coordinate security cooperation, enable energy development and resolve disputes among countries in this vital area that sits astride two different regional bureaus with responsibility for Europe and the Middle East.

These roles are also tempting because they did not require confirmation by the Senate. Accordingly, successive administrations increasingly used the positions to advance high-profile foreign policies through senior but unconfirmed officials. The State Department currently maintains 41 such positions, while another 14 remain vacant.

Congress finally cracked down on the confirmation loophole in Section 5105 of last year’s defense bill, the FY2022 National Defense Authorization Act (NDAA). Now the State Department is required to identify officials exercising “significant authority pursuant to the laws of the United States,” including special representatives and envoys, and submit them for confirmation by the Senate starting on Jan. 3. Naturally, the executive branch will try to wriggle out of any congressional oversight requirements. 

While the law is fairly clear that existing special envoys and representatives must still be confirmed, the legislation was drafted with room for liberal interpretation by administration lawyers who may be badgered by State Department leadership to find ways to circumvent the often laborious and sometimes contentious Senate confirmation process. It certainly appears that the administration intends to do just that. Having just appointed two envoys within a month of Jan. 3 strongly suggests the State Department is filling vacancies now in order to avoid having to submit new candidates for confirmation. 

Unfortunately, even if the administration were to follow the law and recognize that even existing special envoys must now be confirmed, it is unlikely any would appear before the Senate any time soon. The law also provides the president or secretary of State with wide latitude to use waivers to delay the necessity of Senate confirmations by up to a year, creating loopholes where personnel could potentially be shuffled around to avoid confirmation requirements. 

However, the oversight implications should the Senate not rigorously apply the confirmation requirement to existing envoys are significant. Take special envoy for Iran Rob Malley as an example. Appointed a week after President Biden took office, Malley was tasked with negotiating the United States’ return to the Joint Comprehensive Plan of Action (JCPOA), or a similar nuclear agreement with the Iranian regime. After nearly two years in which the administration has nearly given away the store in offers of sanctions relief to the regime, Malley has still failed to arrive at “a stronger and longer deal,” and he may have lost the confidence of the Iranian people in his tone-deaf response to their protests.

Even as the Iranian regime has repeatedly refused U.S. offers for a new nuclear deal and supplied Russia with drones to be used against Ukraine, Malley refuses to abandon the offer of a deal or articulate any sort of coherent alternative strategy. Accordingly, congressional calls for Malley’s dismissal have ramped up as a necessary first step in course correction. Should Malley be subject to confirmation, the Senate would have the authority to influence the administration’s personnel and its policy decision-making.

Providing advice and consent is one of the Senate’s most sacred duties, enshrined in the Constitution. While the Biden administration should comply with the law and officially nominate all special envoys, including existing ones for Senate confirmation, the Senate must also demand it. Senators should take full advantage of their rights and withhold votes on any further confirmations until the mandated new nominations are submitted.

Morgan Lorraine Viña is vice president, government affairs, for the Jewish Institute for National Security of America (JINSA). Gabriel Noronha is a fellow with JINSA’s Gemunder Center for Defense and Strategy and previously served as the Special Advisor for Iran at the Department of State.