But Obama could say it — right? — about this:
The Obama administration’s failure to notify Congress of the release of five Guantanamo Bay detainees ahead of his exchanging them for American soldier Bowe Bergdahl is a direct violation of the law, according to CNN legal analyst Jeffrey Toobin.I guess by "law," Toobin means statute. The Constitution is also law, and the President's view of the Constitution is that the statute in question encroaches on his constitutional power and is therefore a nullity. The President may be claiming power that the statutory law didn't give him, but he's not taking power if it was given by the Constitution, and there's nothing illegal about contradicting a nullity.
“I think he clearly broke the law,” Toobin said on Monday, adding that the president’s signing statement in which he called the law unconstitutional does not automatically make it so. “Certainly this is an example of a signing statement where the president is taking power for himself that the law didn’t give him — he’s explicitly contradicting it.”
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69 comments:
I look forward to all the articles in Mother Jones, TNR, and The Nation explaining how, in retrospect, well, maybe W. had a point about those signing statements after all.
One trouble with Obama's "executive actions" is that then they can also be reversed by the next president.
And then since, we now have two precedents, the next Democrat in office re-institutes Obama's, and the next Republican reverses again, and so on.
IOW, Banana Republic of North America.
There is no way POTUS Obama can break any law. He is the POTUS.
He will be succeeded by POTUS HRC, who has never broken any law.
2016 is the TAKE-BACK-THE-WHITE-HOUSE Campaign.
I don't agree with Obama's decision to make the prisoner trade, but I think he was right to ignore the statute in question.
There have been plenty of cases of Obama illegally overstepping his Constitutional authority -- e.g., by unilaterally declaring war on Libya -- but this isn't one of them.
When a light bender does it, he cannot be impeached.
I do notice though that there are rarely halos created by photographing his head in front of circles.
https://www.google.com/search?q=obama+halo
If only President Reagan had thought to "suspend" implementation of the Boland Amendment until after the Contras were defeated, or issued a waiver to Col. North, a whole big kerfuffle could have been avoided.
The important thing is the women's vote, not the law.
but what are the consequences?
if recent history is any proof, nothing, accompanied by excuses from his supporters.
YoungHegelian said...
I look forward to all the articles in Mother Jones, TNR, and The Nation explaining how, in retrospect, well, maybe W. had a point about those signing statements after all.
won't happen. see Fen's Law
Section 1035 of the National Defense Authorization Act for Fiscal Year 2014 is an interesting read.
It applies by its terms to the Secretary of Defense, not the President, so maybe there is something to the old Nixon principle that when the President does it, it is not illegal.
Also, the authority to transfer or release Gitmo detainees it grants is subject to a notification requirement, but not contingent on notification.
Further, the President's signing statement did give Congress this advance notification:
"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."
There's that word "flexibility" again.
Why doesn't the executive branch take laws to court if they believe them to be unconstitutional, rather than just say they are unconstitutional?
Abide by the law, sue to change it, or work to repeal it.
Obama has his own duty to interpret the Constitution, and if he feels this statute interferes with his prerogative, he should not feel constrained by it ... so long as there is an opportunity for judicial review. I am a bit rusty on all this, but would this action be the sort of thing that can be litigated in the courts (who has standing?), or is the only enforcement mechanism impeachment (which won't happen)?
President Obama has a different political problem on the legality of this release than you may think he has.
He's told his progressive supporters that his hands are tied on closing Gitmo. The question he may be most concerned about answering is why he doesn't simply transfer or release the remaining detainees, as he did these five.
And he may want to float a trial balloon on the possibility of doing exactly that, if political conditions permit, in December 2014 or December 2016.
I'm kind of confused....the defense of Obama for breaking the law is that he SIGNED AN UNCONSTITUTIONAL LAW? Seriously? So he either did not faithfully keep his oath to the constitution or the law.
I guess if the president can pardon anyone then he can pardon himself and then commit any crime he feels like, or that no crime can be committed by the president.
Obama is just the sort of guy who can run this into a full dictatorship. Elections? He can suspend them without having broken the law, I suppose.
There is something else here that I feel uneasy about, but cannot quite say why, and that is that I cannot imagine any White House chief of staff allowing the President to be seen anywhere near the Dahlberg family, but here it happened and big time - in the Rose Garden on national TV with speeches by all.
Regardless of what they might have had in mind policy-wise with this exchange, or that the charges against Pvt. Dahlgren are "just allegations," there is something very disturbing about this.
I am entirely serious about asking this...
Is there literally anything President Obama can do that would see him impeached?
What if he really did give Alaska back to the Russians?
I say this without clicking on the "Obama is like Nixon"tag, but that tag seems awfully prescient.
"after the Contras were defeated,"
The Contras weren't defeated. The Sandanistas lost the first honest election.
Fen's law writ large. The left does not believe in any of the things they lecture the rest of us about. Candidate Obama spewed so much bullshit about signing statements that president obama simply had to ignore what was said. It will be a delight to see candidate Hillary! after to answer these continual fiats for the next 2 years.
This is getting kinda boring.
Using the IRS to punish his opponents, using DOJ to shut down lawful businesses he finds less than salubrious, selling guns to Mexican drug cartels, using drones to kill Americans without due process-- and I'm just scratching the surface.
I mean, another day, another law ignored by the president. Can't he do something different for a change, like obey the law? It would be real cool, and, like, thinking outside the box.
I've been amazed at how little substantive things seem to stick to this President. I recall the first time I had a funny feeling about the guy as President. It was during the press conference in early 2009, when he called Chrysler bondholders "speculators". Well, I just had that feeling once again, but con gusto, when I heard that as many as 6 soldiers may have been killed in the protracted search and rescue effort for this Bergdahl fellow. I think that finally, the shit has hit the fan for Obama.
I'm conflicted. I think the law in question is unwise, from the perspective that an opportunity to exchange prisoners may have a narrow time window and certainly demands a degree of secrecy that precludes sharing data with Congress.
But I don't think that this president's cavalier attitude towards statutes is a good thing in a president.
Why would the president sign a law that he thinks is unconstitutional? And him a Constitutional Scholar/Professor (koff,koff)
Signing statement or no, he should veto any law that he he does not think Constitutional, shouldn't he?
Or at least if he were honest he should.
John Henry
Obama IS the nullity.
There's more to this issue than the fact that the President is the Commander in Chief. Clearly, Congress does have the Constitutional power to make laws regarding the armed services, and the President can't just ignore those laws -- even if the President disagrees with them.
I don't know whether the President's disregard of the law at issue here is legitimate or not -- but as in the case of Nixon, the presumption must be against the President in this case, because he has shown himself to be a disrespecter of the law in general.
The problem is that the President doesn't get to decide which laws are constitutional and which aren't. That type of precedent effectively renders Congress irrelevant, and the Courts as well if the President opts to ignore them. If Obama felt the law was unconstitutional, he should have vetoed it rather than signed it. Signing what he believed to be a nullity makes a mockery of the rule of law.
It's possible to make an argument that inherently immoral laws shouldn't be followed, but this law clearly isn't of those, unless someone wants to make the case that limiting a President's power is inherently immoral.
This law exists by Obama's own hand, and he hasn't gone through any of the formal processes we have for challenging unconstitutional laws. Instead, he's gone back to Machiavelli's principle of the ends justify the means, to hell with anything standing in the way.
The President is an elected King after all. The British told us that is what our Constitution created and the doofus Washington fooled us for all these years by acting like he was a man serving Congress under laws.
We can thank Obama for teaching us the King rules over all.
Seems like the most impeachable offense is signing a bill into law that you believe is unconstitutional.
The President believes that the duly-passed statute is invalid because it interferes with this powers in military matters as Commander in Chief. So the law is, in his view, "a congressional encroachment on presidential power?"
Help me out here, but is that not the very definition of the unitary executive--about which we heard so much from the left during the last administration? I can't figure out why no one's mentioning it now...
Of course, if He genuinely thought the statute was unconstitutional, it was his duty to veto it, rather than sign it with a signing statement. Once he has signed the bill, he should faithfully execute it. I might think differently if it was a law signed by an earlier president
Dear Leader is above the law.
The constitution, Article I section 8:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
...
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
I'm pretty much in the camp that says "Veto it, or sign it and abide by it." The signing statement is a claim to a line-item veto with no possibility of override, short of impeachment. All it does is say that the law has issues that you think are unconstitutional, but until that is litigated and THE COURTS declare it a nullity, it's still the law.
Just as judges are not super-legislators, executives are not super-jurists. We have WAY too much of that and some day the Left will be made to understand this.
As I understand it, Obama's signing statement only states his *opinion* about which portions of the law are unconstitutional. His opinion on this is not the law. However, somehow this dispute would have to end up in the courts. I doubt anyone would have standing to sue and it would possibly be a political question anyway, so for all practical purposes there is no judicial review and Obama's opinion would stand regardless of its merits.
As I understand it, Obama's signing statement only states his *opinion* about which portions of the law are unconstitutional. His opinion on this is not the law. However, somehow this dispute would have to end up in the courts. I doubt anyone would have standing to sue and it would possibly be a political question anyway, so for all practical purposes there is no judicial review and Obama's opionion would stand.
Can I do this? Declare the speed limit unconstitutional?
Can I, too, do this? Declare the speed limit unconstitutional?
I thought it was interesting how Wolf Blitzer tried to steer the conversation with Toobin into an indictment of Bush and his signing statements.
It is true Bush did issue signing statements, but I can think of not one time when he used his signing statement as a warrant for ignoring or flouting a law.
I agree completely.
And the actual force (if any) of signing statements will never be resolved in court, either, because it is in the interest of neither the legislative or executive branch to have the line drawn indelibly and strictly on the issues of foreign policy.
It doesn't mean that it wasn't a stupid, awful, self-serving, and even treacherous act, just that not complying with the letter of the statute is not "illegal" as is being claimed.
If the president believed that the law was unconstitutional, why did he sign it? Why the game about a signing statement? just veto it.
It is perfectly appropriate for a president to decline to enforce a law if he deems it unconstitutional. In fact it is his duty not to enforce unconstitutional laws. The Supreme Court is not the sole authority for determining whether a law is unconstitutional. Indeed it may not be the final authority in some cases. Just how is the Supreme Court going to force a president to follow a law that the president deems unconstitutional? In that case the only remedy would seem to be impeachment.
However, declining to follow a law based on unconstitutionality is and should be an exceptional act. Because it is exceptional, the president owes it to the people and their representatives to carefully explain why he is declining enforcement. A signing statement seems totally inadequate to this. The explanation should be specific to the situation at issue.
So my objection is not that Obama, or any president, declines to enforce or follow a law based on unconstitutionality. I think the president has that power and that duty. It is disturbing, however, that the president had not chosen to justify his position in any kind of communication with the people or the congress. I think that shows disrespect for both the congress and the people.
Democrats, despite the name of their party, simply want a king to rule over them.
Why doesn't the executive branch take laws to court if they believe them to be unconstitutional, rather than just say they are unconstitutional?
For the same reason Congress doesn't impeach Presidents who ignore the law -- politics.
@America's Politico: "POTUS HRC"--you can just use "Her Majesty".
Why couldn't he have had one of his staff brief a few key member of Congress on the Intel Committee? As in " remember the bill about notice to Congress of releases? And how I was concerned about it affecting our negotiations to release the guy in Afghanistan? Well it's happening now. I am not going to go through the 30 day period but I decided to let a small group of you know because it is the right thing to do."
When are the Congresscritters who are sworn to uphold the U.S. Constitution and the separation of powers principle going to grow some cojones and impeach this Marxo-fascist rat bastard despot who appears single-mindedly intent on destroying the American middle-class and America itself?
I'm a bit rusty on my GITMO-related judicial history, but IIRC the president has some case law behind him holding that, because these prisoners were not on U.S. soil, they are beyond the reach of congress.
No no no you dont understand
Obama didnt know about the 30 day waiting period for notifying congress until after he read about it in the newspaper.
This goes against the vaunted policy of "don't do stupid [stuff]."
" there's nothing illegal about contradicting a nullity."
I may be misunderstanding Anne, but she probably believes President Clinton did not have a sexual relation with that woman. And I am not in the legal profession, but he broke the law probably can't be prosecuted.
"It is perfectly appropriate for a president to decline to enforce a law if he deems it unconstitutional."
It is perfectly appropriate for a president to veto a law if he deems it unconstitutional.
there, fixed it.
Just for old time's sake, I googled "unitary executive George W Bush" and found lots of stuff like this:
"Clearly, Bush[Obama] believes he can ignore the intentions of Congress. Not only that but by this statement, he has evinced his intent to do so, if he so chooses.
On top of this, Bush[Obama] asserts that the law must be consistent with "constitutional limitations on judicial power." But what about presidential power? Does Bush[Obama] see any constitutional or statutory limitations on that? And does this mean that Bush[Obama] will ignore the courts, too, if he chooses ..."
Estragon said...
It doesn't mean that it wasn't a stupid, awful, self-serving, and even treacherous act, just that not complying with the letter of the statute is not "illegal" as is being claimed.
Isn't that the very definition of illegal?
I wonder if we can expect to see many more such in your face, up yours!, for no good reason actions from the president over the next 2 1/2 years?
"ajs said...
As I understand it, Obama's signing statement only states his *opinion* about which portions of the law are unconstitutional. His opinion on this is not the law. However, somehow this dispute would have to end up in the courts. I doubt anyone would have standing to sue and it would possibly be a political question anyway, so for all practical purposes there is no judicial review and Obama's opionion would stand."
Don't you love the way we're all bound by the law but none of us has the "standing" to challenge the law we are compelled by?
Obama has his own duty to interpret the Constitution, and if he feels this statute interferes with his prerogative, he should not feel constrained by it ...
Bullshit. His duty is to faithfully execute. yours is abaldfaced argument that the Presidency should not be constrained by law if he feels it cramps his style. Fucking Leftist.
tim maguire said...
I'm a bit rusty on my GITMO-related judicial history, but IIRC the president has some case law behind him holding that, because these prisoners were not on U.S. soil, they are beyond the reach of congress.
I think there were questions regarding the court's jurisdiction in such cases.
Congress's power of the purse goes wherever the money is spent, their power to regulate the armed forces extends to wherever the armed forces go, and their power to make rules regarding captures on land and water exist wherever those captures might take place.
Candidate Obama spewed so much bullshit about signing statements that president obama simply had to ignore what was said.
Barack Obama Criticizes Executive Orders in 2007 and 2008
America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.
Abraham Lincoln
However, the Constitution delegates to the Congress the power to set regulations for the regulation of the armed forces, and one could argue that the statute was an exercise of that power.
I am not arguing that, btw, since I grudgingly admit that the authority of the release does reside in the executive, but Glenn linked to one or two authors who are arguing it.
It doesn't mean that it wasn't a stupid, awful, self-serving, and even treacherous act, just that not complying with the letter of the statute is not "illegal" as is being claimed.
Isn't that the very definition of illegal?
This is just a logiccal extension of their reasoning concerning illegal immigrants.
"They're not illegal immigrants, they just broke the law by coming here without permission"
When are the Congresscritters who are sworn to uphold the U.S. Constitution and the separation of powers principle going to grow some cojones and impeach this Marxo-fascist rat bastard despot who appears single-mindedly intent on destroying the American middle-class and America itself?
Never.
Maybe, possibly, if he tries to ignore the 22nd Amendment, and the Republicans control both houses of Congress.
Quaestor wrote:
It is true Bush did issue signing statements, but I can think of not one time when he used his signing statement as a warrant for ignoring or flouting a law.
and lets not forget that the left went crazy over Bush's signing statements. They were examples of Bush being a lawless president. Now, not so much.
I
The thought has crossed my mind that this president is a graduate of Harvard Law, where he was president of the Harvard Law Review and he graduated with a Juris Doctor magna cum laude. Considering Obama's attitude towards the law as an institution it seems fair to wonder just what they teach in that institution?
The only reason Obama had to "act swiftly" was the VA scandal blowing up in his face.
Did he think this prisoner trade through? No.
Will it further cement his reputation for incompetence and lawlessness? Yes.
Does it show he barely looks beyond winning the next news cycle? Yes.
He better pray his team did enough due diligence because that photo op puts his reputation completely at risk in a full unmodified hangout
AQ will do a prison break and those 5 will be out within 6 months. It's happened before.
It is starting to look as if he actively helped the Taliban kill Americans. That is treason and he should be hanged, if true.
Article 1, Section 8 of the Constitution lays out powers delegated to Congress, including:
"To declare War ... and make Rules concerning Captures on Land and Water;"
This would seem specifically to make the statute concerned an exercise of Congress's war powers.
Will: "AQ will do a prison break and those 5 will be out within 6 months. It's happened before."
You can't break out of a prison if you aren't in one to begin with...
http://news.yahoo.com/qatar-allowing-freed-taliban-men-move-freely-country-130028784.html
"Winning"
"Now, there are a lot of folks, a lot of skeptics, who often downplay the effectiveness of multilateral action. For them, working through international institutions like the U.N. or respecting international law is a sign of weakness. I think they’re wrong."
And then Obama goes and breaks American law. Because he wants to. Weird.
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