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An Administration that Lies Through Its Teeth

The President has justified the deal that released five top Taliban commanders, and his refusal to notify Congress of the release in advance (as required by statute), principally on two theories.

As to the refusal of notification, the Administration has said that the President's signing statement accompanying the statute gave him authority to undertake the release in emergency circumstances without telling Congress.

As to the release itself  --  which was the price for the return of the allegedly captive Sgt. Bowe Bergdahl  --  the White House's answer (per Jay Carney) has been, "He was a prisoner in an armed conflict, a member of the military, and in that situation the United States does not leave its men and women behind."

Neither statement is true.
One thing I 've noticed in the MSM coverage of this story is that it almost never gives you a way to track down the text of the signing statement.  But it is available, and here it is. The relevant language is as follows:

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.

Let's assume for the moment that signing statements supersede the legislation they accompany (which they don't).  So what?  Nowhere in the relevant language does the signing statement purport to authorize the President actually to release anyone without notifying Congress. What it authorizes is swift (by which Obama presumably means un-notified) negotiations with foreign countries regarding the circumstances of transfers, not the removal from Gitmo per se.

So the Administration's claim of authorization, under the signing statement, for the un-notified release of the Taliban commanders, is false even taken on its own terms. 

The Administration's claim that we don't leave our people behind in an armed conflict is also false.  One need look no further than Benghazi, where, despite the embassy's urgent calls for help while the terrorist attack was underway, we left four of our people behind to spend desperate hours fending for themselves  -- before getting brutally murdered, that is. 

This is despite the fact that, as one high-ranking military source has testified, some military response could have been undertaken, even given the distances involved. 

Still, the President had his reasons for not being as concerned in the Benghazi case as he was in the Bergdahl case.  With respect to Bergdahl, he ignored the law, kept Congress in the dark, endangered an ally, negotiated with terrorists, and thus abandoned the policy of all his predecessors while jeopardizing the long term national security interests of the United States.  He did these things in the service of a defector who deserted his unit and chose his fate.  

In the Benghazi episode, a more relaxed outlook was warranted, and not as much attention was needed for the idea that we don't leave our people behind: The President was packing for his fundraiser in Vegas the next day.


Excellent analysis. This administration has violated their oath to the Constitution as well as any law which doesn't correspond to their Progressive (Marxist) ideology.

All you need to know about this Administration and the military:

Ali Musa Daqduq.

Hmm. At the risk of disagreeing in part with (as I call him in the class we co-teach) the other Professor Otis, the signing statement did (very gingerly) make or at least allude to an argument that the provision in question is unconstitutional. The sentence in the signing statement before the one quoted in the post reads "Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles."

What I think is behind that sentence is actually quite a good argument, spelled out by Prof. Mike Ramsay of San Diego over at the Originalism blog, that the provision saying no funds may be spent on a prisoner transfer abroad from Gitmo without 30 days prior notice is an unconstitutional intrusion by Congress into the President's authority as Commander in Chief. http://originalismblog.typepad.com/the-originalism-blog/2014/06/the-presidents-power-over-prisoners-of-warmichael-ramsey.html
To give an even clearer example than the ones Mike gives of what the problem with the statute could be, Congress likely could not say no funding for the Navy unless the President gives 30 days notice before moving a ship.

If the provision is in fact unconstitutional the President probably may disregard it. And military command decisions are probably the area in which the President is most justified as a prudential matter in being aggressive in disregarding statutes that intrude on his power. Finally, and at the risk of being really annoying to some of my friends, the argument strikes me as better here (as a legal matter) than it was with respect to the criminal prohibition on torture that the famous OLC opinions claimed President Bush would have the authority to direct the military to disregard.

That said, it probably still suffers from a similar vice. This is an area of shared powers between the President and Congress, which after all is authorized to make rules for the government of the military services. So if the President is going to make this kind of claim, he is well advised to pick the right set of "circumstances" in which to do so. And if the President makes this kind of claim and then retreats from it when he is challenged on it, as the President seems to be doing here, he leaves the Presidency weaker than if he had never made the claim in the first place.

For the President to make this assertion so tentatively and in the context of this apparently preposterous prisoner exchange therefore seems extremely ill-advised. The facts are lousy, not surprisingly he is furiously backpedaling, and the whole affair is likely to leave the Presidency weakened. Picking this exchange as a test case is therefore deeply irresponsible even if it is not illegal.

And this, ladies and gentlemen, is what happens when (1) you hector your wife to read your blog entries, (2) she gives in, and (3) she's smarter than you are. There's a reason one of us was a Scalia clerk, and the other a lowly AUSA.

Nonetheless, to preserve the traditional male-dominated family (JOKE ALERT), I feel compelled to offer a response.

1. The other Prof. Otis cites the following language in the signing statement (emphasis added): "Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, IN CERTAIN CIRCUMSTANCES, WOULD VIOLATE CONSTITUTIONAL SEPARATION OF POWERS PRINCIPLES." She maintains that, "behind that statement" is a good constitutional argument that Congress cannot trench upon the President's commander-in-chief powers to the extent the requirement-of-notice would do.

I think we encounter a few problems at the outset. My experience in law is that, assuming a party has a "good argument behind" his position, but never puts it in front, and indeed never makes it at all, it's considered waived. Isn't that what has happened here?

Although the Administration has pointed to the signing statement sentence I quoted in my entry as justification for the non-notification, it has not relied upon the other sentence -- the one that mentions undescribed separation of powers "principles." Nor, even had it done so, does a general reference to "principles" amount to a claim that Congress violated any particular language in the Constitution.

Very much to the contrary, yesterday, the President apologized to the Chairman and Ranking Member of the Senate Intelligence Committee for not providing the notice the statute demands. That is an all-but-explicit admission by the President -- a former lecturer in constitutional law at the University of Chicago Law School -- that there is no constitutional defense for the failure to notify.

Still, Prof. Lee Otis continues by saying that, "If the provision is in fact unconstitutional the President probably may disregard it."

It seems to me that the most interesting word in that sentence is "probably."

The Supreme Court docket is filled every year with cases in which the constitutionality of various parts of various statutes might be, or "probably" are, unconstitutional. The preliminary question in such cases, as in so many others, is "who gets to decide?"

Almost all the time, the answer to that question is easy. Since Marbury v. Madison, THE COURTS get to decide. If you want your position vindicated as consistent with the Constitution, you don't just put up a billboard or write an op-ed and consider the matter closed. You take it to court and win your case.

That is the premise underlying the tradition in the Department of Justice that, even if the executive branch has a non-trivial doubt about the constitutionality of a statute, it is required to obey it and defend it before the courts.

This was certainly the rule in the 1999 Dickerson case, which involved the question whether Congress, by statute, could properly modify the Miranda rule, and effectively re-instate the Fifth Amendment's overall voluntariness test. Conservatives, including both Professor Otises, were appalled that the Department refused to apply or defend the statute. And we were appalled notwithstanding the fact that, when President Johnson signed the statute in 1968, he appended a signing statement doubting its constitutionality in terms at least as strong as those President Obama employed in the signing statement he appended to the notice-before-transfer provision of the statute at issue now.

Conservatives (again including both Prof. Otises) were likewise appalled when DOJ refused to defend DOMA. No matter what our personal position may be on the underlying question of same-sex marriage, we viewed it as a clear overreach for the executive branch to conclude on its own that a statute duly (and I might add overwhelmingly) adopted by Congress would be just pooh-poohed because there had been a shift in ideology in the White House.

One of the hallmarks of the rule of law is stability. It is simply not possible for our citizens to conform their behavior to the requirements of law if the law changes from one Administration to the next (or one AG to the next). This is the major reason for the longstanding tradition that the Department will defend ANY duly enacted statute provided there is any reasonable argument to be made in its behalf.

Had President Obama viewed to 30-days-before-prisoner-transfer notice requirement in last year's Defense bill as an unconstitutional restraint on executive power, he had -- as he often says -- his veto pen ready. He didn't use it. The Constitution provides no such thing as a continuing opportunity to veto, and no serious person believes that signing statements -- even signing statements a good deal less gauzy than this one -- legally nullify or should be able to nullify the statutes to which they refer.

Still, there is an important point here not present in the Miranda-related or DOMA cases. As the other Prof. Otis notes, "military command decisions are probably the area in which the President is most justified as a prudential matter in being aggressive in disregarding statutes that intrude on his power."

As stated, I agree with that. But there are at least two problems. First, it begs the question whether the officer who takes an oath faithfully to execute the law may EVER disregard a law he was content enough to sign; and second, even if so, whether his own inevitably self-serving (even if good faith) decision about what "intrudes on his power" is or should be the last word on the subject.

I agree that the war making power is the toughest case for my side of this argument. Indeed, I would go so far as to say that there may theoretically come a case in which national survival is on the line. In such a case, it is my view that the President could point-blank ignore a Supreme Court decision that limited his military options.

But that is not this case, not by a fare-thee-well. Indeed, this case is much easier for my side than FDR's Japanese internment decisions during the horrors of WWII. Virtually every modern scholar agrees that the President had no legitimate authority, under his war powers or otherwise, to imprison Americans simply for being Japanese ancestry.

Could anyone seriously think that refusing to tell Congress for 30 days about releasing five enemy detainees presents anything close to the war-making issues in WWII?

And, if a point must be made of it, Mr. Obama's decision to release the Taliban commanders without giving the statutorily-required notice to Congress was obviously not made to improve our chances of winning in war. It was done, as Obama's supporters have pointed out, to help END the war, not win it.

Let's be frank and cut through the abstractions. The swap was never about war powers as traditionally understood. Sure, it has a "command decision" coloration, but that's about it. Underneath it all, it was a decision to NEGATE the military, not facilitate winning.

The military does not become more successful by welcoming back deserters. To the exact contrary, such a thing divides and demoralizes the troops, which is exactly what's been happening with increasing anger over these last few days. The swap also pretty much directly advances the enemy's prospects of more battlefield success -- does any serious person think these Taliban commanders won't re-take the field, and do so sooner rather than later?

Whatever the abstract contours of the President's war-making power may be, they must be evaluated in this case as the facts of this case dictate. A President who all but announced a passive and supine military posture in his West Point commencement address last month; who embraces "multi-lateral solutions;" who's embarrassed to the point of apology for America's use of force; and who now frees the other side's most dangerous terrorist commanders in order to recover a single derelict -- that is a President poorly positioned to claim that the theoretically needed, but actually disdained, powers of the commander-in-chief justify his disregard of the notification statute he signed last year.

The most charitable word to employ, should the President ever choose to make a war-powers defense (which wisely and tellingly he has not) would be "ironic."

I'm confused - is the commenter commonly known as Bill Otis really a Bill and Lee Otis joint venture doing business as Bill Otis?

On the substance, in general it is troubling to me that there is this general trend for the executive to not comply with legislation. Real separation of powers problem.

Even, here in California where I personally strongly support same-sex marriage, the fact California failed to argue it bothers me a lot.

This is the first time I have managed to get Lee to chime in. While I'm sitting here cutting loose, she's doing something I slightly remember doing -- working. She's head of the Faculty Division of the Federalist Society. In the fall semester, we teach a class together at Georgetown Law School; hence we are both "Professor Otis."

It probably is just as well that the President is not making this argument under the circumstances. Bad cases make bad law, and therefore it may be that the less said very loudly about the law here the better.

Nonetheless, I will venture a few more words on the topic as I think it is important for people reading legal blogs to understand some of the nuances here. I am also going to break this up into a couple of posts for ease of reading.

First, the other professor Otis argues that if this law is unconstitutional, the President still has the obligation to carry it out, on account of the President's constitutional obligation "to take care that the laws be faithfully executed." But this obligation includes the obligation to faithfully execute Constitution, which by its own terms is "the supreme Law of the Land." To be sure the Constitution states that federal laws are also "the supreme Law of the Land" but only if they are made "in pursuance of the Constitution."

So how does the President's take care duty operate with respect to laws that he sincerely believes were not "made in pursuance of the Constitution," i.e., that he believes are unconstitutional?

Pace the other Professor Otis, the answer to this is not clearcut, and that is probably just as well. Of course in Marbury v. Madison, the Court said that determining the constitutionality of laws is "emphatically the province and duty" of the judiciary. But Marshall was not claiming that the judiciary has either the sole or the last word on all constitutional questions. All he said was that in a proper case, where it is argued that there is a conflict between the Constitution and an Act of Congress, the courts have an obligation to decide whether that is true, and if it is, to follow the Constitution rather than the statute. He reasoned that this was a quintessentially legal question, to which the Articie III "judicial power," in a proper "case in law or equity," extended to deciding constitutional questions.

Why? Well, the Court cited the very same language about "supreme Law of the Land" as making clear that the Constitution too is a "law" and that in a case over which a court has jurisdiction, deciding which of two laws to follow when they conflict is a classic judicial activity.

But that does not make it improper for the President to make such decisions too. Indeed, the structure of the argument for the President's authority to decide is identical to the one Marshall amde for the courts' authority in Madison. The President has a duty to execute all the laws of the United States, including the Constitution. So if an Act of Congress conflicts with the Constitution, the President has to decide which to follow. When he has to make that decision in order to perform his own executive responsibilities, this is a quintessentially executive activity.

You never really want to start a debate with Prof. Lee Otis, because she generally tends to finish it. I will have more to say a bit later, but, in the meantime, re-enforcements have arrived in the form of pieces by two good friends of ours, Paul Mirengoff (who was best man at our wedding), and Prof. John Yoo. Both are brilliant lawyers.

Paul comes out on my side, and so does John, mostly.



Prof Otis - Thank you for the excellent analysis.

My unsolicited opinion on the matter is I think the Constitution is most dated when it comes to Congress' powers relating to war. Wars are not declared anymore, Privateers are not commissioned, and there is no mention of an Air Force (Army guy here has to get dig in).

It seems the Article II, Commander-in-Chief clause pretty much is used to justify almost any military action the President desires to undertake. Maybe that is the best way for it to be done, but I think it can be a real separation of powers issue.

I agree with Prof. Lee Otis that the Constitution is a "law" (indeed the pre-eminent law) the President is required, and thus empowered, faithfully to execute. I disagree about the extent of the President's power to decide for himself what the Constitution authorizes him to do, and I think this problem is particularly acute when his decision flatly contradicts an Act of Congress.

Specifically, I see two related problems with Prof. Lee Otis's argument: That it proves too much, and that it violates a rule predating the Constitution but essential to its viability -- that no man can be the judge in his own case.

If the President is to have the last word on his own powers, the Constitution will not be vindicated; to the contrary, it and its protections will be at risk of severe damage. See, e.g., the Japanese internment episode (a case in point of proving too much). We will be left with the aroma (if not considerably more than just the aroma) of dictatorship that many conservatives smelled coming from the White House well before the Bergdahl episode.

The central idea of the Constitution is that, because human beings are both fallible and prone to overestimate their own wisdom and good faith, the power exercised by the human beings running the government must be dispersed. The Constitution disperses it through (1) federalism, i.e., splitting power between the federal government and the states; and (2) the creation of three branches within the federal government, each of which partly depends on, and is influenced by, the others.

To say that the President can effectively nullify legislation through a signing statement is to allow him pretty much to gobble up the legislative branch. And it will do no good to say that this extra edge given Presidential power will be reserved exclusively or almost exclusively to cases involving his role as commander-in-chief. A qualification like that will immediately start to disintegrate, as the President discovers that more and more nullification-through-signing-statement is "necessary" for him to "lead the troops." In other words, the power to ignore legislation in order to be able to command the army will expand seamlessly into the power UNILATERALLY TO DECIDE WHAT PARTICULAR PIECES OF LEGISLATION THAT INCLUDES.

At that point, the Constitution, in whose behalf this generous version of executive authority is said to be enlisted, is in big, big trouble.

I could read pages of this debate. And, Bill, I will stay away from who came out on the winning end. :-)

As to who won...........ummmmm............I respectfully invoke my Fifth Amendment privilege.

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