The Washington Post reports that the President plans to ramp up the release of prisoners from Guantanamo Bay over the next two years. However, Congress has imposed a number of statutory barriers to releasing the most dangerous prisoners. But such parchment barriers are of no moment for the President, the Post explains:
Obama remains a long way from achieving his goal of closing Guantanamo and could yet be forced to threaten executive action if he cannot overcome congressional opposition to moving or releasing detainees. But officials are optimistic that they can make significant progress in pressing other countries to accept transfers.
This fits in with the president’s modus operandi. In the face of gridlock that thwarts his policy preferences, the President feels embolden to push the boundaries of executive powers.This entire notion of “threatening” executive action when Congress gets in his way is a really, really dangerous precedent. The only limits are those imposed by his Office of Legal Counsel (which aren’t much limits at all), assuming he actually takes their advice (not always the case).
With respect to Guantanamo, we already know that he is prepared to ignore Congress if the circumstances compel it. After all, the release of five detainees in exchange for Bergdahl was flatly illegal.
I am revamping my article, Gridlock and Executive Power, into two parts. Part I will be Gridlock and Executive Power with respect to domestic affairs. It will focus on Obamacare (individual mandate, employer mandate, premium subsidies for states without exchanges, the contraceptive mandate, waiving guaranteed issue in the territories, providing subsidized benefits for Congressional employees), immigration (DACA and DAPA), recess appointments (Noel Canning), and many others.
Part II will be Gridlock and Executive Power with respect to foreign affairs. It will focus on Libya, Bergdahl, Guantanamo, and others.
Ultimately these will turn into a book project.