Caitlin Hayden’s statement last week on “why it was lawful” to exchange five Taliban prisoners held at Guantanamo for Sergeant Bergdahl, “notwithstanding the notice requirement in Section 1035(d) of the FY14 NDAA,” has triggered the latest interpretive crisis of the Obama presidency.
Section 1035(d) provides—without exception—that the Secretary of Defense “shall notify the appropriate committees of Congress of a determination” to transfer or release an individual detained at Guantanamo “not later than 30 days before the transfer or release of the individual.” The Secretary of Defense did not give advance notice in this case. And yet, rather than argue that Section 1035(d) is unconstitutional as applied to the Bergdahl matter, the Administration has (as I understand it) invoked the absurd-results canon and argued that Section 1035(d) “should be construed not to apply to this unique set of circumstances.” We are asked to read the NDAA as if it exempts a sensitive prisoner swap from its congressional notification scheme, when the plain text of the statute does no such thing.
There are various frames through which this episode might be viewed: as a dispute about the President’s power over prisoners of war, the winding down of Guantanamo, or the “unique set of circumstances” behind the Bergdahl exchange. I want to place the episode in a different and broader context, involving the Obama Administration’s efforts to cope with congressional obstreperousness more generally. Across a range of areas, this Administration has responded to perceived legislative misconduct by interpreting away legal limits that might have seemed to stand in its way. Interpretation has been a tool of constitutional adaptation and retaliation.
At points, the Administration has openly disregarded a congressional command. In June 2009 and again in September 2011, the Office of Legal Counsel advised executive branch agencies that they need not comply with appropriations riders that would have limited the President’s diplomatic flexibility. In June 2012, after President Obama asserted executive privilege, the Justice Department refused to turn over certain documents regarding Operation Fast and Furious that had been subpoenaed by the House Committee on Oversight and Government Reform.
But such acts of outright defiance have been very rare. More often, when President Obama has clashed with Congress and questions of statutory or constitutional authority have subsequently arisen, the Administration has denied that there is any applicable legal restriction to defy. Looked at the right way, the President has concluded, the laws on the books allow him to do what he wants to do. What’s more, Congress’s oppositional behavior supports that conclusion.
Consider some of the most controversial interpretive positions the President has taken. In each case, top Administration officials have called attention to an alleged legislative failing that lay behind their fancy legal footwork.
- When U.S. forces remained active in Libya past 60 days in the summer of 2011, President Obama contended that they were not engaged in “hostilities” within the meaning of the War Powers Resolution, and therefore that they were not subject to the Resolution’s 60-day pullout rule. Critics complained that U.S. forces were contributing to an awfully hostile-looking campaign of bombing. Defending his approach to Libya, the President groused that members of Congress broadly supported it behind the scenes, yet certain “folks” were determined to obscure that support (and the Republican-controlled House was determined to avoid formalizing it) by turning the issue into a political “cause célèbre.”
- When the Department of Homeland Security announced a policy in June 2012 to stop deportation of undocumented immigrants who came to the country as children, the Department characterized this “Dreamers policy” as within the scope of delegated prosecutorial discretion. Critics complained that Congress had considered, and failed to enact, a DREAM Act that would have achieved the same reform. Defending the policy, the President emphasized that a majority of both houses had voted for the DREAM Act, yet a runaway filibuster doomed its passage in the Senate.
- When the Department of Education started granting states the “flexibility” to pursue educational reform plans “in a manner that was not originally contemplated by the No Child Left Behind Act of 2001,” the White House cited “unintended consequences” of the 2001 law as well as the explicit waiver authority granted therein. Critics complained that such sweeping waivers would rewrite the regulatory framework established by Congress. Defending these waivers, Education Secretary Arne Duncan noted that there was broad bipartisan support for overhauling No Child Left Behind, yet a “dysfunctional” legislative environment made that goal unattainable.
- When President Obama made recess appointments to top posts at the Consumer Financial Protection Bureau and the National Labor Relations Board in January 2012, the Office of Legal Counsel opined that the appointments were lawful under “a practical construction” of the Recess Appointments Clause. Critics complained, among other things, that the Senate had been holding pro forma sessions during its break precisely to foreclose this option. Defending the appointments, White House officials lamented that Senate Republicans had acknowledged the suitability of the recess appointees, yet nevertheless stonewalled the nominations in an unprecedented effort to prevent disfavored agencies from exercising their statutory responsibilities.
And now we have the Bergdahl imbroglio. In a signing statement that anticipated interpretive evasions to come, President Obama explained that he had repeatedly “called upon the Congress to lift” the NDAA’s detainee transfer restrictions, which are “unwarranted and burdensome” and corrosive of “our national security interests.” These restrictions have “no justification beyond politics,” Obama has said; a responsible Congress never would have imposed them.
Each of these five cases could be distinguished from the others, of course. (And more examples might be added to the list.) The Bergdahl case is notably an outlier for involving unwanted congressional action, rather than congressional inaction. No one take could satisfactorily account for all of their nuances.
But what these cases share, I think, is this: the conjoining of an aggressive interpretive stance with a suggestion that Congress’s institutional pathologies—its pervasive gridlock, grandstanding, and partisanship amounting to a kind of constitutional bad faith—enhanced the President’s discretion as a matter of policy if not also of law. That is to say, the executive made claims of discretionary authority that it would not have dared to make but for a perceived breach of background separation-of-powers norms by Congress in the first instance.
The stakes here are profound. On the one hand, the specter of lawless self-aggrandizement looms over the entire set of episodes. On the other hand, if we take the Administration’s political rhetoric seriously, we find that its interpretive method is wrapped up in, and animated by, a concern for the continued integrity and workability of our constitutional system. “[T]oday’s pattern of obstruction” in Congress, the President insists, has “been harmful to our democracy,” is “not what our founders envisioned,” and “just isn’t normal”; it jeopardizes “the ability of any president to fulfill his or her constitutional duty.” Put in somewhat different terms, it violates longstanding constitutional conventions that allow the government to get things done. These are fighting words in the separation-of-powers arena, where historical practice exerts a great deal of normative force and “functional” arguments about the need to maintain “the proper balance between the coordinate branches” are taken to have constitutional significance.
And so the President has fought back. The implicit theory seems to be that when the law-making branch of government is broken, the law-executing branch must enjoy greater freedom to utilize the laws with which it is stuck. Dysfunction yields discretion.
I should stress that this is my own reconstruction of recent events; no Obama Administration representative has ever articulated this theory as such. The Administration’s lawyers have been especially reluctant to criticize Congress in their formal presentations. And the President prominently declined to adopt a latitudinarian reading of the Fourteenth Amendment’s Public Debt Clause after House Republicans violated the convention against holding the debt ceiling hostage. Discernible in the episodes I have noted, however, is the notion that Congress’s bad behavior may legitimize executive branch responses, including interpretive responses, that would otherwise be inappropriate.
Stepping back from the specifics, then, we can understand some of the most salient interpretive moves made by the Obama Administration as what international lawyers would call countermeasures—as unilateral efforts to redress another actor’s wrongdoing through means that would not and should not be used under normal circumstances. We can understand them as a form of constitutional self-help. There are many other forms as well. Creative (re)interpretation is just one of the many different ways in which the branches seek to rectify each other’s misdeeds outside of the courts. Indeed, President Obama’s entire “We Can’t Wait” campaign can be understood as an advertisement for executive self-help in response to a Congress that, according to Obama, will not “do its job.”
To understand is not to justify. Some dispute that Congress is in fact as dysfunctional as President Obama suggests. Others may resist the idea that any such dysfunction expands the President’s discretion as a matter of law or political morality. And even those who are sympathetic to that general notion might worry about the use of creative interpretation, in particular, as a tool of executive self-help. In any event, the Obama Administration has gestured at but largely failed to develop the case for why the congressional obstacles it has faced are constitutional evils—violations of written or unwritten interbranch norms—that warrant an exceptional response. Even the Administration’s critique of Section 1035 remains murky at this time.
Hence, to recognize any given presidential maneuver as an attempt at constitutional self-help is only the beginning of a much longer conversation. It is a useful beginning, though. Legal theorists have thought long and hard about the proper role for self-help in other settings, most analogously in the field of public international law. Building on their work and applying a self-help lens, we Americans can do a better job of diagnosing, and perhaps even disciplining, the governmental retaliation within our borders.
Or so we may hope. As long as the current “Age of Dysfunction” is seen to persist, the future of the separation of powers is likely to contain many more examples of executive self-help.
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Readers who have made it this far: I explore the subject of constitutional self-help, and its relationship to constitutional conventions and the doctrine of countermeasures, in a forthcoming article on “Self-Help and the Separation of Powers.”