WASHINGTON – Back when Barack Obama was a presidential candidate who boasted his background as a professor of constitutional law, he frequently criticized then-President George W. Bush for what Obama said was a clear abuse of executive power.
Now, as president, Obama is being accused of doing the same, albeit not as frequently.
The issue at hand is his use of signing statements, official pronouncements in which a president offers his interpretation of legislation that he is signing – and in the modern era, sometimes announces that he feels free to disregard it.
While Obama has not issued as many signing statements as Bush did, many say he employs them in much the same manner.
The latest – and potentially hottest – flash point involves Obama’s decision over the weekend to trade the release of Army Sgt. Bowe Bergdahl, the sole remaining U.S. military prisoner of war, for that of five Taliban commanders who were being held at the detention center at Guantanamo Bay, Cuba.
Current law, signed by Obama in December, stipulates that the defense secretary must notify relevant congressional committees at least 30 days before transferring anyone from Guantanamo Bay and provide assurances that those released would not be in a position to again threaten the United States or its interests.
Obama did not send such a notice to Capitol Hill until Monday – two days after the detainees were sent to Qatar, where they will live for at least the next year, in circumstances that neither the administration nor the emirate has explained publicly.
That Obama should ignore the notification provision, which was part of the 2014 National Defense Authorization Act, is not entirely a surprise.
In the signing statement with the law, Obama declared that he thought the requirement was potentially unconstitutional.
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, he said.
In the case of Bergdahl’s release, administration officials have argued, life-or-death circumstances required fast action.
That has not quieted the criticism from Capitol Hill.
Our joy at Sergeant Bergdahl’s release is tempered by the fact that President Obama chose to ignore the law, not to mention sound policy, to achieve it, House Armed Services Committee Chairman Howard Buck McKeon, R-Calif., and Sen. James Inhofe of Oklahoma, the ranking Republican on the Senate Armed Services Committee, said in a joint statement.
The practice of issuing signing statements goes as far back as President Andrew Jackson, who in 1830 issued one stipulating that he would not extend beyond Michigan territory an $8,000 road that Congress wanted to build from Detroit to Chicago.
But they were relatively rare until Ronald Reagan began using signing statements as a means of asserting the power of the executive branch.