The press, left, right, center, fringe, nut bar, has been calling Obama to task for ordering and executing a swap of 5 Gitmo prisoners for Army sergeant Bowe Bergdahl without notifying Congress 30 days in advance, as by the National Defense Authorization Act (NDAA). Obama justified his ignoring of that provision of the law in several ways, including purported fear of the plans leaking, fear for the sergeant’s life, and exigency among others. The authority he assumed came via a signing statement he attached to the NDAA when he approved it.
Here is the relevant text from the NDAA, H.R. 3304, Section 1035 (d):
NOTIFICATION. -The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection.
And here is the relevant text from his signing statement:
In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.
Now, lets harken back to Candidate Obama in 2007:
While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law.
And in 2008:
Congress’ job is to pass legislation … The president can veto it or he can sign it. But what George Bush has been trying to do as part of his effort to accumulate more power in the presidency. … He’s been saying, well I can basically change what Congress passed by attaching a letter saying âI don’t agree with this part or I don’t agree with that part, I’m going to choose to interpret it this way or that way.’
That’s not part of his power, but this is part of the whole theory of George Bush that he can make laws as he goes along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end-run around Congress.
President Obama criticized then-president George W. Bush for expanding the power of the executive branch and altering the intent of bills written and passed by Congress via the use of signing statements. He did so correctly, in my opinion, as it is the job of the President (as sworn to in the Oath of Office) to faithfully execute the laws of the land. Congress writes, the Executive Branch executes, the Supreme Court supervises and judges. That’s the separation of powers, That should be well understood by someone who taught the Constitution for 10 years.
Now that he’s in power, sitting in the seat that GWB sat in when he used signing statements “as a license to evade laws,” what are we to make of his doing the exact same thing?
Some are defending his actions, some are arguing that he did not “break the law,” but when left-leaning and Obama-friendly organizations such as The Atlantic, The Daily Beast, MSNBC, PolitiFact and others bluntly declare he crossed the line, an outside observer may fairly decide that the evidence is pretty overwhelming.
In the grand scheme, it’s only the latest in a very long line of broken promises, and weary wonks may just shrug their shoulders and say “what else is new,” but if even his defenders feel he overstepped, Obama’s people might want to think a bit before they stretch or break any of the promises that aren’t yet cast to the curb. If he’s lost MSNBC on this, his invincibility isn’t what it used to be.
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