Obama May Break One Promise to Keep Another

The New York Times reports that President Obama is considering breaking one campaign promise—that he would eschew extreme claims of executive power—in order to keep another—that he would close the prison at Guantanamo Bay. Instead of vetoing a military spending bill that forbids the use of taxpayer money to transfer prisoners from Guantanamo to the United States for trial, he may issue a signing statement declaring that the restriction unconstitutionally impinges on his authority as head of the executive branch and commander in chief of the armed forces. The Times says it is "unclear whether the administration would actually carry out a detainee transfer despite the restrictions, or whether it would merely assert, as an abstract matter, that Mr. Obama had the authority to do so."

Either way, this plan seems inconsistent with Obama' criticism of his predecessor's claims to sweeping executive powers, which George W. Bush said gave him the authority to ignore laws impeding his war on terrorism. Candidate Obama rejected "the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security." He supported legislation requiring congressional approval to bomb Iran's nuclear facilities, and he said the president is bound by bans on torture and warrantless surveillance, congressional limits on troop deployments, human rights treaties approved by the Senate, and (most directly relevant in this context) statutes governing the detention and trial of suspected terrorists. Furthermore, he strongly criticized Bush's promiscuous use of signing statements:

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. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws—more than any president in history—is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that….

I reject the use of signing statements to make extreme and implausible claims of presidential authority.

If Obama nevertheless issues a signing statement declaring his authority to move prisoners from Guantanamo to the U.S. despite a law forbidding such transfers, he will have a hard time arguing that he is not trying to "nullify or undermine congressional instructions as enacted into law." He presumably will say that he is trying to "protect a president's constitutional prerogatives," but that is also what Bush said. So it all comes down to whether this is an "extreme and implausible" claim of presidential authority. Since closing Guantanamo is a symbolic move that may not have any real effect on detention policies (particularly in light of the president's assertion that he can keep detainees imprisoned with or without trial, and whether or not they're convicted), I'd rather Obama break that promise than abandon any pretense of executive humility.