During the summer of 2014, I wrote a draft article titled Gridlock and Executive Power, that explores the various ways President Obama has employed unilateral action in the face of congressional intransigence. I never quite finished that article–and with good reason–I will dust it off, and update it to include several of the recent, and upcoming disputes. Perhaps one of the biggest such debates will concern the limitations that Congress placed through the NDAA on the transfer of prisoners at Guantanamo Bay. The President vetoed the NDAA, but Congress is poised to re-enact a revised version–with the same Gitmo restrictions–with a veto-proof majority. So where does this leave us?
Ben Wittes has a thorough post, focusing on the meaning of the Capture Clause, and basically concludes that the meaning isn’t clear, and the President could do what he has done before–go it alone:
In the end, there is no controlling authority on the question. As a practical matter, therefore, Obama could probably get away with moving on a unilateral basis on the theory that he has Commander in Chief powers to make tactical decisions and the Congress’s power to make rules for captures does not apply to these—or any—people, at least not to the extent of regulating where one holds them.
But in contrast to the claims of Craig and Sloan—who insist that “One need not accept a particularly broad view of executive authority . . . to see that the restrictions Congress has imposed are unconstitutional”—this would be a bold assertion of executive authority. The President would be suddenly defying laws he has consistently observed. And he would be doing so only at the point he had lost the ability to get them changed.
What do we make of the fact that the President complied with the law, until it was clear Congress wouldn’t give him what he wanted, and then decided to ignore the law. This is President Obama’s modus operandi–gridlock and executive power. Whether it is Noel Canning, Libya, Bowe Bowe Bergdahl, or any others, the President is content to follow the law until he needs something Congress doesn’t want to provide.