Last week, a particularly interesting dialogue developed here between a former Scalia clerk and yours truly on whether the President broke the law in releasing the Taliban All-Terror Team without giving the required 30 days' notice to Congress. The former Scalia clerk, Prof. Lee Otis, thought not; I disagreed.
Now comes Prof. David Pozen at Columbia, a former Stevens clerk, with another take on it. Prof. Pozen's piece begins:
Section 1035(d) provides--without exception--that the Secretary of Defense "shall notify the appropriate committees of Congress of a determination" to transfer or release an individual detained at Guantanamo "not later than 30 days before the transfer or release of the individual." The Secretary of Defense did not give advance notice in this case. And yet, rather than argue that Section 1035(d) is unconstitutional as applied to the Bergdahl matter, the Administration has (as I understand it) invoked the absurd-results canon and argued that Section 1035(d) "should be construed not to apply to this unique set of circumstances." We are asked to read the NDAA as if it exempts a sensitive prisoner swap from its congressional notification scheme, when the plain text of the statute does no such thing.
There are various frames through which this episode might be viewed: as a dispute about the President's power over prisoners of war, the winding down of Guantanamo, or the "unique set of circumstances" behind the Bergdahl exchange. I want to place the episode in a different and broader context, involving the Obama Administration's efforts to cope with congressional obstreperousness more generally. Across a range of areas, this Administration has responded to perceived legislative misconduct by interpreting away legal limits that might have seemed to stand in its way. Interpretation has been a tool of constitutional adaptation and retaliation.