Explaining the constitutional flap over Obama and Bergdahl

Does President Obama have the power to ignore a congressional mandate if he feels it is unconstitutional? The recent flap over U.S. Army Sgt. Bowe Bergdahl is the latest debate about executive power and its limits.

USA_PFC_BoweBergdahl400Last summer, a similar debate raged when the President pondered U.S. military intervention in Syria’s civil war. Some members of Congress objected when President Obama considered using force in Syria without its prior consent, in an apparent violation of the War Powers Resolution approved by Congress in 1973.

The group demanded that only the House and Senate could approve a military strike on Syria last September, while others noted that Presidents since Richard Nixon’s time believed the Resolution was unconstitutional, and Presidents had the power to act outside the Resolution as the leaders of the nation’s military.

Eventually, President Obama referred the Syria decision to Congress and no military action took place.

Back in 2011, the Obama administration did act in Libya, again over congressional objections. President Obama explained that the U.S. military action came in support of a United Nations Security Council Resolution and he had the power to make them “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”

The Justice Department followed with an opinion that “prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.”

In the latest tug of war, President Obama’s congressional opponents and the administration are arguing over the negotiations and process that led to a prisoner exchange involving Bergdahl and five Taliban members held at the U.S. facility in Guantanamo Bay.

But parallel to the political arguments are contested constitutional debates about the limits of executive power.

The National Defense Authorization Act of 2014 says that the Defense Department must notify Congress 30 days before any transfer of prisoners from Guantanamo Bay and provide a detailed rationale for a transfer.

But President Obama added what is called a signing statement to the bill in December 2013, in which he said while the law was an improvement on a prior version, it put “unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.”

The President’s opponents noted the irony of the signing statement, since then Senator Obama was an outspoken opponent of signing statements used by President George W. Bush to protest about 1,200 statutes.

The National Security Council issued a press release on June 3 that explained part of the Obama administration’s reasoning, and explained why the President believed he had an exception to the law, based on the logic used in the December 2013 signing statement.

“In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers,” the statement said. “Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.”

Some critics, such as Jack Goldsmith, a former U.S. Assistant Attorney General and a professor at Harvard Law School, believed Obama disregarded the law, and he might have had a right to do so.

“To say that the President disregarded a federal statute because he interpreted it in the emergency context before him to impinge upon Article II is not at all to say that the President acted wrongly or unlawfully.  It’s actually quite a hard legal issue, with few real precedents.  But that seems to me to be the issue,” Goldsmith said in the blog Lawfare.

Former U.S. attorney general Michael Mukasey told Fox News last weekend that he believed President Obama broke the law, but that the law was unconstitutional. “Article II [of the U.S. Constitution] makes him the commander in chief of the armed forces. These people were in the custody of the armed forces,” he said.

On the Volokh Conspiracy blog, Ilya Somin from George Mason University argued that Congress is well within its powers to issue general regulations about Guantanamo Bay.

“I believe it is clearly authorized by the Congress’ power to ‘make Rules for the Government and Regulation of the land and naval Forces,’ which has historically been understood to include the authority to make rules governing the capture, treatment, and release of prisoners,” Somin said.

In the end and with the Supreme Court unlikely to rule on the issue, the Obama administration will face more of a political embarrassment in the short run that a constitutional challenge.

American University’s Chris Edelson, writing in the Los Angeles Times and this blog, points out the irony of the current situation.

Edelson says the Obama administration is relying on the inherent power theory, which allows a President to set aside parts of a law that the executive branch believes are infringements on executive power.

“With the recent prisoner swap, however, [Obama] seems to have done precisely what he promised not to do as a candidate,” Edelson said. “As it stands, however, the administration has staked out a position that is very hard to distinguish from the Bush administration’s inherent power approach.”

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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