Op-Ed: Obama’s swap for Bergdahl: A presidential power play?

In the wake of the prisoner swap that resulted in Sgt. Bowe Bergdahl’s release by the Taliban, questions are rightly being asked about the deal’s legal justifications. In fact, the Obama administration did not comply with statutory requirements that it provide notice to Congress before transferring prisoners from Guantanamo Bay, and it has not fully explained how it believes its unilateral decision can be legally justified.

It seems likely, however, that the administration is relying on inherent (i.e. unrestrained) power to set aside statutory restrictions that, in its view, infringe on executive power.

A June 3 statement released by the National Security Council press office claims that “in these circumstances [where waiting could endanger the captive U.S. soldier], delaying the transfer … 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. 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.”

The problem is that the 30-day statutory notice requirement is clear. If Congress had meant to include an exception for emergencies, it could have said so (but did not).

What’s really going on here? It appears President Obama simply decided to set aside the requirement that he provide advance notice to Congress before transferring the prisoners, relying on unilateral authority to set aside statutory limits on executive power. This claim seems to hinge on a signing statement — cited in the NSC press release — the president included when he signed the 2014 National Defense Authorization Act into law.

Presidential signing statements have existed since at least Andrew Jackson’s day. Until recently, these statements were generally uncontroversial, and no one successfully claimed they had any substantive legal consequences.

The George W. Bush administration used signing statements more often and for more substantive purposes than previous administrations. New York Times reporter Charlie Savage noted in 2009 that President Bush “broke all records, using signing statements to challenge about 1,200 sections of bills.”

Political scientist Christopher Kelley observed that the Bush administration used signing statements as part of an effort to advance the unitary executive theory, a dangerous idea designed to justify essentially unchecked presidential power in areas including national security and foreign affairs. Advocates of the theory claim that the president has inherent or absolute authority to simply set aside legislation that, in his or her view, infringes on executive power.

Of course, presidents can veto legislation that they object to on constitutional grounds. The unitary executive theory, as implemented by the Bush administration through signing statements, stands for the radical idea that presidents can pick and choose which parts of legislation that they sign into law will have effect, setting aside certain provisions at their discretion.

As political scientist Louis Fisher has written, the Bush administration’s use of signing statements raised the question: “Does the United States have two sets of laws, one performed publicly by Congress, and the other conducted after the fact by executive officials?”

As a presidential candidate in 2007, Obama rightly suggested that the Bush administration’s use of signing statements was “a clear abuse of power [designed] to evade laws that the president does not like or as an end run around provisions designed to foster accountability.” Obama promised that, if elected president, he “[would] not use signing statements to nullify or undermine congressional instructions as enacted into law.”

With the recent prisoner swap, however, he seems to have done precisely what he promised not to do as a candidate. The 2014 National Defense Authorization Act requires the administration to provide Congress with 30 days’ advance notice before transferring any prisoner from Guantanamo.

The president added a statement when he signed that legislation into law, claiming that “in certain circumstances [statutory restrictions on the president’s ability to transfer prisoners from Guantanamo] 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 administration seems to have relied on that signing statement as the basis for setting aside the statutory notice requirement in the Bergdahl prisoner exchange.

There were other options here. The administration could have gone to Congress and sought advance approval. It could, as President Lincoln did in 1861, seek retroactive approval from Congress — letting Congress determine whether a genuine emergency existed. 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.

Chris Edelson is an assistant professor of government at American University’s School of Public Affairs. He is the author of “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror.”