Why didn't Obama notify Congress of releasing Bergdahl 30 days prior section 1035(d) of the 2014 NDAA-states?
Part of the administration's defense is that, when Obama signed the NDAA, he appended a signing statement saying that Section 1035 would "in certain circumstances ... violate constitutional separation of power principles." A signing statement is a "written commentary on a bill that is being signed into law," often used by presidents to instruct their staff on how to implement confusing legislation. Since the George H.W. Bush administration, presidents have used them, dubiously, to declare certain portions of legislation they've signed unconstitutional. This is, suffice to say, controversial and legally ambiguous, especially when presidents use it declare their intention to disregard certain parts of a law.
- Leslie GoudyLv 77 years agoFavorite Answer
The Bush Administration famously used a sweeping interpretation of this argument to justify almost everything it did in the war on terrorism. That includes torturing Guantanamo Bay inmates despite laws explicitly banning the torture of detainees.
However, no legal expert I spoke to thought the Bush-era principles could justify the Bergdahl deal. Ryan Goodman said that "the broad full-throated authority has been generally repudiated since the Bush administration" — including Guantanamo Supreme Court cases like Hamdan v. Rumsfeld. Count the Obama administration as one of the most important repudiators. "I think," Goodman said, "that this White House is committed, almost as part of its identity, to not embracing the strong Article II interpretation of its predecessor."
It's very possible to make the argument that, whatever you think about torture and detention, the exchange of prisoners during wartime is a core executive function and Congress is not allowed to interfere with it," Posner said. This very narrow interpretation of Article II would hold that the NDAA's 30 day notification is unconstitutional only in the cases where it restricts the president's discretion to swap prisoners. It wouldn't, for example, allow him to override the other parts of the NDAA making it really hard for Obama to free Guantanamo inmates.
Is this interpretation of Article II correct? There's precious little Supreme Court precedent, and legal experts didn't think there's an obviously right answer. " "It's actually quite a hard legal issue, with few real precedents," Goldsmith wrote. "With the Constitution, everything is completely up in the air," Golove told me.
The Supreme Court will never take the case
There is one thing that every scholar I spoke to for this piece agreed on: there won't be any kind of court case over the Bergdahl swap. Obama will be able to do what he wants, legal or not, and no one will be able to stop him.
The key issue is something called "standing." In order to sue the president in a case like this, someone needs to show "individualized harm:" something bad has to happen to you.
For instance, one of the most important Article II cases happened after Harry Truman seized a Youngstown steel mill during the Korean War to keep it running in face of an impending strike. The mill owners had standing to sue because they were harmed by losing their property. They won, and Youngstown Sheet & Tube Co. v. Sawyer remains one of the most famous limits on the president's warmaking powers.
But releasing inmates from Guantanamo doesn't harm a specific person in the same obvious way as seizing their property does. "You could argue that the public is somehow injured," Posner said, "but that's not sufficient for standing." In other words, there's no one in an obvious position to sue.
Congress, also, won't do anything to clarify the legal issues about its intent or Article II. The Bergdahl exchange is hopelessly political. Democrats would line up with Obama, and no legislation would make it through the Senate — to say nothing of getting enough votes in both houses to override a presidential veto.
So was what Obama did illegal? It seems like, given the law, the only person who gets to decide is President Obama.
- MabeLv 77 years ago
A President can not disregard the law. It is based on the Golden Rule, that is civil, and law. /thus, it applies to all. It is in the best interest of the President to make sure the people's well being is secure and safe as soon as possible, by all means. If Congress is out, or stalling on it, then a President can do what he feels is necessary to correct the matter on his own. For that matter, anyone can defend their own right to survive, and defend the right of another to survive any threat on their life. It's possible that Congress didn't feel that giving up 5 of their men was worth getting back one of ours, and the President and other people didn't feel the same about it. If we would have gotten 5 back over one of their's then they probably would have felt that was o.k. We are talking prisoner's here, and not men running free in the country they are in. So, we can get back our own, and let him go free here, doubtfully we would send him back there, nor would he want to go, I'm sure. What they do with their's isn't our business to handle. Realistically, it is going to take more than 5 men to take over a country. Not that they couldn't add a little more to a problem, if that's the way they want it, just saying...it did take more than the man himself to be able to get back home. It took people that were defending him, and the President was one that made it happen, and those that helped in getting him back here. There probably was some in Congress that was glad the President did what he did, and did know of the issues going on. They can only be who they are and not who everyone else is.
- Rise of IronLv 77 years ago
"Dry read" "makes them sleepy". If their liberal news sources were reporting that the GAO concluded their investigations and found that the $988,000 prisoner swap was illegal, they wouldn't even have to read the question to know what you are talking about.
Once again, the law finds that the Obama Administration is on the wrong side of the law. I'm losing count, but I think that makes it the 15th time.
- Dennis PLv 77 years ago
Simple , Obama doesn't give a hoot about the constitution .. Neither do most liberals .. They assume it to be outdated! Obama's poll numbers were sinking faster then the titanis! he needed a diversion , and though he would be praised for this .. He was wrong......again !
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- CaduceusGirlLv 47 years ago
Because Obama shows no reverence for the constitution. Obamacare, gun control attempts, Benghazi, IRS, Bergdahl swap, and on and on. He swapped Bergdahl because he wanted to look like he was doing a good thing; it blew up in his face, and rightfully so.Source(s): My 16 year old head :D
- Anonymous7 years ago
- Anonymous7 years ago
it's like the t party not wanting to give bergdahl due process
- durango joeLv 77 years ago
He has ignored the law when it was inconvenient in every other case so why should this be any different.
- Anonymous7 years ago
Good lord, just reading this question makes me sleepy
- Anonymous7 years ago
This is a dry read for sure