President Obama’s decision to free five Taliban from the Guantanamo Bay prison* in exchange for soldier Bowe Bergdahl was illegal. Full stop. The White House’s contention that the law barring such release was unconstitutional is without merit.
The law in question was the 2013 National Defense Authorization Act, the bill appropriating funds for the military. Part of that law, which the President signed, provided that “[n]one of the funds authorized by” the Act** “may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—(1)is not a United States citizen or a member of the Armed Forces of the United States; and (2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.” [See Updates below]
Another provision, Section 1028(c)(2), provides rules for prisoner transfers when authorized: it permits transfers of prisoners to foreign countries only where the Secretary of Defense files a certification 30 days prior to the transfer, attesting that measures have been taken that will prevent the prisoner from resuming his life of terrorism. A waiver of this requirement is available, but this waiver also requires a 30 day notice prior to transfer.
These are the provisions the Administration says are unconstitutional.
When signing the law, President Obama issued a “signing statement,” which is a proviso presidents sometimes use when a provision in a law is open to different interpretations. In such cases, presidents will say “I’m letting you know that although I’m signing this into law, I’m doing so only because I shall interpret this ambiguous language in such and such a way.” What legal authority signing statements actually have is something legal scholars argue about, but one thing is absolutely clear: the President cannot use a signing statement to alter the actual legal effect of a law, or to veto any portion of it. A signing statement is nothing more than an explanation of how the Executive understands the law—it is not, and cannot be, a substantive alteration of the law.
We know that because in Clinton v. New York in 1996, the Supreme Court held, rightly, that the line-item veto is unconstitutional. The Constitution tells us how a bill becomes a law, and no other method is constitutionally acceptable. Thus Congress cannot give the President power to change the substance of legislation once it’s passed Congress, because that would be giving him a role in the legislative process that the Constitution denies him. For the President to sign a bill with a signing statement that changes provisions of that law—as opposed to explaining how he interprets it—is not a signing statement; it’s a line-item veto, which is unconstitutional.
In his signing statement in 2013, Pres. Obama said of the prohibition on funds for transfer that he “continue[d] to oppose [it]” because it “substitutes the Congress’s blanket political determination for careful and fact-based determinations” for which he is responsible. As a policy matter, he explained, it was his opinion that executive officials should have the power to decide whether to prosecute terrorists in federal court. Thus “[r]emoving that tool from the executive branch undermines our national security,” and, “[m]oreover, this provision would, under certain circumstances, violate constitutional separation of powers principles.” And he said of the 30 day notice requirement that it was an “unwarranted restriction[]” on his power, and claimed that he would “implement” the law “in a manner that avoids the “constitutional conflict” that he perceieved. That conflict was, he said, an interference with the President’s “ability to carry out its military, national security, and foreign relations activities.”
Note that this is not an explanation of how he will interpret ambiguous legal language (the language wasn’t ambiguous). This is a statement that the President, for policy and constitutional reasons, “oppose[s]” the bill in question. It was therefore his duty—and his only constitutional recourse—to veto that bill, and to veto it in its entirety. That is the only route open to a President in such circumstances—as the President himself admitted in that same signing statement when he said “[o]ur Constitution does not afford the President the opportunity to approve or reject statutory sections one by one.”
Pres. Obama chose to sign that bill, thereby making it “the supreme Law of the Land.”
The allegation of unconstitutionality rests on Article II, Section 2, which declares that the President “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” This “commander in chief” provision is often said to include an extremely broad power to act unilaterally in defense of national interests. And I believe that this is often the correct conclusion. The President does have discretion to act without Congressional authorization in times of urgency—including deploying troops, conducting surveillance, and so forth.
But the Constitution limits that power in many ways—ways not accounted for by the more enthusiastic advocates of “the unitary executive.” The first is hinted at in the provision quoted above: the President is Commander in Chief of the militia when called into the actual service of the United States. Called by whom? Not by the President: he has no constitutional authority to do this on his own. Instead, Article I Section 8 gives Congress the power “[t]o provide for calling forth the Militia,” and “provide for…governing such Part of [the militia] as may be employed in the Service of the United States.” Congress makes the laws that the President executes even in military matters of this sort.
More to the point here, Article I Section 8 gives Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces”; to “raise and support Armies” (we’ll come back to that); and “[t]o define and punish…Offenses against the Law of Nations.” The President is denied power to do any of these things. Thus his power as Commander in Chief does not allow him total power over the armed forces or foreign policy. On the contrary, he is given an indefinite range of power to enforce laws and regulations that Congress may then define and limit. While the President can act on his own in many cases—particularly in cases where Congress has not spoken at all on the subject—that power is always subject to control by Congress.
The most important of all of these controls is the power over appropriations. The Constitution’s authors, familiar with the abuses of the Stuart monarchy, which had levied war without Parliament’s consent and even refused to convene Parliament because it would have refused to appropriate funds to run those wars, gave Congress the power of the purse. And even that is tightly constrained—Article I section 8 denies Congress the power to make military appropriations for more than two years at a time (and the House, in charge of originating revenue bills, meets every two years, so only one Congress at a time).
“This power over the purse,” wrote Madison, “may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
Thus Congress has the power to make military appropriations, and within those appropiations to include provisions that deny the President power to use the money in specified circumstances—to fund the military, but at the same time block the use of funds for removing prisoners from Guantanamo—and impose a notice requirement on sending prisoners out of the country. Note that Congress has the power not only to raise an army, but also to support the army. What is the difference between raising and supporting? To raise an army means to recruit, equip, and send men into the field. But to support an army means to provide for them on an ongoing basis—and that inherently means to control and to regulate, primarily through the medium of appropriations.
This is one of the ways that Congress “make[s] Rules for the Government and Regulation of the land and naval Forces.” While the President is in charge of commanding the army, it is Congress that supports, governs, regulates, disciplines, coordinates, and limits the armed forces.
(And if Guantanamo is seen as a prison for people who engaged in international terrorism (which I don’t believe is the government’s de jure position, though it is de facto), then it still falls within Congress’s power, not the President’s, to “punish…Offenses against the Law of Nations,” and therefore it is still for Congress, and not the President, to decide whom to remove from the there (except in cases of pardon).)
In his famous concurring opinion in the Steel Seizure Case, Justice Jackson wrote that the President’s Commander in Chief authority falls into three categories: acting with Congress’s express approval; acting where Congress hasn’t spoken; acting contrary to Congress’s express disapproval. The third category—which applied in that case and in this one, means that the President’s act
can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject…only [if the subject of the legislation] is within [the President’s] domain and beyond control by Congress…. This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement…. It is also empowered to make rules for the “Government and Regulation of land and naval forces,” by which it may to some unknown extent impinge upon even command functions.
But even more than in the Steel Seizure Case, such an analysis falls heavily in favor of Congress here. Congressional power over military appropriations, and its use of that power to limit presidential discretion, is deeply rooted in our constitutional tradition. Regulating the military and controlling how its appropriations are spent is hardly “beyond control by Congress.”
When one adds the fact that the limit in this instance was an extremely minor and routine one—a mere 30 day notice requirement—the question becomes even clearer. This was not a case in which the Congress simply said no to the President, as in the Steel Seizure Case. It required that he give them reasonable time for deliberation—which as Federalist 26 makes clear, was the primary reason Congress was given the appropriation power: “Schemes to subvert the liberties of a great community require time,” writes Hamilton. “The legislature of the United States will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents.” But the The President’s objection here was precisely that he did not want to give the legislature time to deliberate.
Now, this is not to deny that there may be extremely rare and urgent circumstances when the President must simply break the law for the nation’s welfare. There might indeed be times of such critical danger that the President must act illegally for reasons of public safety. But when he does so, he should admit that that is what he has done and ask the Congress to ratify his decision. Consider Lincoln’s suspension of habeas corpus in 1861. While I believe that was entirely within his power, many, including Chief Justice Taney, disagreed. Congress therefore took up the issue and retroactively approved of his actions. But here, President Obama is doing the opposite.
As I’ve said, the most important provision in the Constitution for civilian control over the military—for the entire relationship between our civil government and the military—lies in Congress’s control over military appropriations and the government of the military forces, and in its ability to use those powers even to an extent that “impinges on command functions.” These parts of the Constitution were among the most essential in the eyes of those who had learned from the abuses of seventeenth century England—abuses that our President seems intent on imitating.
*-Perhaps I should note that I think the detention camp at Guantanamo Bay is also unconstitutional and unconscionable. But that does not affect the question here.
**-Section 528 of the 2014 Consolidated Appropriations Act also included a provision barring the President from using any“ funds appropriated or otherwise made available in this or any other Act...to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee...” etc. This would eliminate any ambiguity in the National Defense Authorization Act, and it makes clear that the President may not use “discretionary” funds for this purpose, either. That was the trick he used to wage war in Syria without Congressional authorization, and was also another favorite of the Stuart dynasty.
Update: More, including links to relevant documents, at Josh Blackman’s website and at Volokh Conspiracy.
Update: Reader MP wrote to argue that the transfer does not violate the appropriations limit because that only forbids transfer to territory under U.S. control, and these guys were transferred to foreign countries and not to U.S. territory. I think that is arguable, since transfer within is also prohibited, and a prisoner transfer regarding prisoners held in U.S. territory seems to me to be a transfer within such territory. But I see MP’s point, since what Congress had in mind at the time of passing the law was to (unjustly) block transfer of prisoners to the mainland for trial. So that makes sense. But the transfer still violates the 30 day notice requirement, and it’s worth emphasizing that the Administration confesses that its acts broke the law. It’s just arguing, wrongly, that the law is unconstitutional.
Update: I now agree I was in error in thinking the transfer violated section 1027’s prohibition on expenditure. But it still violated section 1028(c)(2). Both were in the appropriations act, so both fall under Congress’s powers to limit presidential authority in a spending bill.
Update: I respond to Prof. Ramsey in this post.
Note: this blog post has been updated a bunch. Sorry for any confusion.
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