

President Obama and Sgt. Bowe Bergdahl’s parents at the White House on May 31. (Jonathan Ernst/Reuters)

Among the various disputes over the negotiated release of prisoner-of-war Sgt. Bowe Bergdahl is the interesting shift in the Obama administration’s justification of its executive powers — and its denial that is doing so. From the beginning of his term, President Obama sought to move away from the claims of inherent presidential powers which marked much of the George W. Bush administration’s logic underpinning its unilateralism, to one derived from statutory authority granted by Congress. That is, he argued that he could act because Congress said he could act, rather than from a notion of presidential prerogative.

Now, this was easier for Obama, of course, because of the various extensions of that statutory authority — not least the Military Commissions Act, the FISA Amendments Act and the reauthorization of the Patriot Act — passed during the Bush administration (some with then-Sen. Obama’s support). Further, at least one of the crucial statutes underpinning the president’s discretionary powers over the past decade, the September 2001 Authorization for the Use of Military Force (AUMF), is immensely broad, and critics’ efforts to amend it have failed to gain traction.

But it certainly seemed to represent a shift in philosophy as well as a matter of available tools. The president declined, for instance, to claim any authority under the 14th Amendment to ignore the statutory debt ceiling. He promised in an early executive order to close the Guantanamo Bay detention facility, but abided by a series of congressional budget riders preventing that outcome.

The Bowe Bergdahl case fits very uneasily with this. As part of the process of negotiating his release, the president decided to override a section of the fiscal 2014 National Defense Authorization Act (Section 1035(d) for those keeping score at home) requiring that Congress receive notification 30 days in advance of a transfer of a Guantanamo detainee. When he signed the bill into law in late 2013, Obama issued a statement noting that while Section 1035 was “an improvement over current law,” “in certain circumstances, [it] would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.”

Presumably the administration decided that this was one of those circumstances and — like the Bush administration before it — declined to enforce what it felt was an unconstitutional constraint on the president’s powers as commander in chief. This might be defensible — but it ran hard into those past promises. While candidate Obama never said he would not issue signing statements, he said he would not do so “to nullify or undermine congressional instructions as enacted into law.” Indeed, the “problem with [the Bush] administration” was that “it has attached signing statements to legislation … to avoid enforcing certain provisions of the legislation that the President does not like.” The problem with that position, though — as I wrote in late 2011 with regards to an earlier iteration of the NDAA — is that “nullifying or undermining congressional instructions is the entire reason to use signing statements” of this sort. And avoiding enforcement of legislation that the president did not like … seems to be what happened here?

Today the National Security Council says “no” and tries to square the circle. Its statement argues that the administration was following the NDAA after all. At least, the one Congress meant to write. “The Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances,” the statement reads. “… In these circumstances, delaying the transfer in order to provide the 30-day notice would interfere with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.”

This is not hugely convincing. Presidents like vague language — but while notification language often contains outs (“when feasible,” “whenever possible,” etc.), the section at hand is not particularly ambiguous. In that sense, the situation is closer to the arguments before the Supreme Court back in February over the Clean Air Act’s statutory thresholds for when permits were required. The administration claimed then that regulatory discretion to change the permitting trigger was needed to avoid an “absurd” result under the letter of the law: Thus EPA was not “asserting authority to rewrite the statutory thresholds” but rather — as with Bergdahl — “dealing with a practical problem that’s arisen under the immediate circumstances.”

The court was skeptical then, as other legal commentators seem skeptical now. Indeed, in terms of accountability, a direct constitutional challenge to the provision would actually be preferable. Coordinate construction has a long history, and presidents aren’t always wrong about the scope of their powers. But making a law say what it should say … well, that requires changing the law.