Today Judge Lamberth of D.D.C. issued his decision in Warafi. In this case, a Guantanamo detainee alleges that he can no longer be held under the authority of the 2001 AUMF because the hostilities with the Taliban are over. Marty Lederman has a detailed analysis of the opinion. Here, I want to focus on one aspect of Judge Lamberth’s decision, and the government’s litigation strategy, that bears on Texas v. United States.
One of the major questions in this case is the impact of President’s statements about whether the hostilities with the Taliban have finished. The Court addressed a related issue in Footnote 52 of Hamdan.
Justice THOMAS looks not to the President’s official Article 36(a) determination, but instead to press statements made by the Secretary of Defense and the Under Secretary of Defense for Policy. See post, at 712-713 (dissenting opinion). We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media.
Judge Higginson cited this footnote in his dissent in Texas v. United States:
Instead, as noted earlier, the district court looked above DHS, the executive agency, to President Obama, the executive-in-chief to find contradiction to DHS stated purpose and emphasis on case-by-case discretion. For good reason, however, the Supreme Court has not relied on press statements to discern government motivation and test the legality of governmental action, much less inaction. See Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006) (“We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media.”). Presidents, like governors and legislators, often describe law enthusiastically yet defend the same law narrowly.
Back to Warafi. In this case, the government opposed Warafi’s petition based explicitly on President Obama’s statements. As Judge Lamberth notes in his opinion:
On page 27 of the government’s opposition, the government disputes the import of the President’s statements, but does not challenge whether they are admissible to show the extent to which hostilities still exist.
Notably, the statements were made in press conferences–the very sort of unofficial remarks the Hamdan Court said were not relevant in “evaluating the legality of executive action.”
That the government is expressly relying on these statements here, undercuts the position advanced by Judge Higginson in Texas v. United States. As I’ve argued, President Obama’s press statements about the scope of his power to grant deferred action and work authorization to the parents of citizens are relevant to the separation-of-powers challenge at issue in Texas v. United States.
Judge Lamberth concluded that the “President’s position, while relevant, is not the only evidence that matters to this issue.”
I think this is correct. The President’s press statements are not enough to establish what the official position of the government is, but is relevant to the determination of whether the Executive Branch is violating the law.
Also relevant to Texas’s case is the court, though skeptical of post hoc statements made by the President, acknowledges that the ex ante statements that the war is over may be false.
Judge Lamberth concludes with an interesting anecdote that works in (of all cases) the fact that the ACA’s mandate was enacted as a penalty but defended as a tax.
This discussion does have some import for Texas v. United States. Some good stuff for Texas, some good stuff for the United States. But on balance, it rejects the notion that the President’s statements are inadmissible–the position that the dissent took up, but the majority did not need to address because the case was resolved on narrow APA grounds. If nothing else, DOJ is estopped from making this position.