The president may be on a collision course with both Congress and the Constitution as he tries to fulfill his campaign promise to shutter the prison facility at Guantanamo Bay.
On November 25, President Obama signed a reauthorization of the National Defense Authorization Act, an annual bill that includes a provision banning the transfer of Gitmo detainees to U.S. soil. The bill passed both houses of Congress with overwhelming, veto-proof majorities of 91 to 3 in the Senate and 370 to 58 in the House. This is the latest in a long line of legislation with Gitmo transfer restrictions the president has signed. He first signed such limits into law in 2009 and has done so every year since.
But the president reportedly may violate the law he just signed by issuing an executive order to shutter the facility in Cuba and move most of the detainees to U.S. soil. Upon signing the bill, Obama stated: “the executive branch must have the flexibility, with regard to the detainees who remain at Guantanamo, to determine when and where to prosecute them . . . and when and where to transfer them.”
The administration is reportedly scouting various prisons including facilities in Kansas, South Carolina, and Colorado. According to a White House spokesman, “despite the significant congressional obstacles that have been erected—[the president] is determined to accomplish this goal.” Such a unilateral move would be illegal and unconstitutional.
Transferring Gitmo Detainees Is Unconstitutional
Article II, section 3 of the U.S. Constitution requires the president to “take Care that the Laws be faithfully executed.” He does not get to choose some laws to follow and some laws to flout. Indeed, one of the grievances in the Declaration of Independence was King George III’s unilateral suspension of certain laws. Our founders expressly rejected this practice by giving the president a constitutional mandate to faithfully execute the laws.
The only circumstance in which the president can decline to enforce a duly enacted statute is if he deems the act unconstitutional. So far, Obama has made no such legal argument; to the contrary, he has chosen to sign bills with these provisions repeatedly.
Although Obama decried President Bush’s signing statements on the campaign trail, in this case, he adopted one of his own: “In the event that the restrictions on the transfer of detainees . . . operate in a manner that violates constitutional [separation of powers] principles, my Administration will implement them in a manner that avoids the constitutional conflict.” It is difficult to understand what the words “in the event that” mean here. Either the restrictions do or do not violate separation of powers principles.
Here the president is not proposing to “implement” the detainee transfer restrictions in any particular “manner”; he is threatening to ignore them altogether. In any case, he has put forth no legal or constitutional analysis to support a separation of powers conflict. If Obama violates the statute, it would be an unprecedented affront to Congress and a brazen assertion of executive power.
Our Constitution delineates roles for both Congress and the president in national security matters. The framers wisely made the president the commander-in-chief of the military because they understood that the exigencies of war often require real-time battlefield decisions that are best suited for a unitary executive. Historically, most presidents, as well as the Supreme Court, have rightly interpreted the commander-in-chief clause very broadly to bestow the president with vast powers over national security.
Captive Oversight Is Congress’s Job
The founders balanced the president’s broad commander-in-chief power by allocating several distinct national security roles for Congress. Congress, not the president, has the power to “declare war.” Indeed, Article I, section 8 of the Constitution enumerates 18 powers of Congress, and at least six of them concern national security. For example, Congress may “make rules for the government and regulation of the land and naval forces” and may “punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”
In addition—and most importantly for this case—Congress also has authority to “make Rules concerning Captures on Land and Water.” Elaborating on this clause, Judge Brett Kavanaugh of the D.C. Circuit recently explained that “Congress possesses express constitutional authority to make rules concerning wartime detainees. . . . The constitutional text . . . and recent Supreme Court precedents indicate that the President does not possess exclusive, preclusive authority over the transfer of detainees.” Kavanaugh emphasized that Congress’s power applies with equal force to Gitmo transfers: “to the extent Congress wants to place judicially enforceable restrictions on Executive transfers of Guantanamo or other wartime detainees, it has that power.”
The Supreme Court has not squarely addressed this issue, but several cases suggest it would agree with Kavanaugh. The Supreme Court would be likely to analyze a separation of powers challenge under the seminal 1952 case Youngstown v. Sawyer, in which Justice Jackson explained: “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb” and his actions must be “scrutinized with caution.”
Moreover, since September 11, 2001, the Supreme Court has repeatedly affirmed Congress’s role in the war on terror. In the 2006 case U.S. v. Hamdan, the court acknowledged that the ability to “make Rules concerning Captures on Land and Water” is an important military power that the founders gave to Congress.
If President Obama issues an executive order to transfer Guantanamo detainees to the United States, it will be an affront to Congress and the Constitution. Seven years ago, then-candidate Obama made a naïve promise on the campaign trail. As president, he has encountered numerous legal, political, and logistical hurdles to closing Gitmo and presumably has learned the difference between campaign rhetoric and reality. Let’s hope he does not violate the Constitution to fulfill a promise he has no power to keep.