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Since When Is the President Supposed to Enforce Unenacted Statutes?

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Tuesday, July 19, 2011 at 10:08 PM

Earlier today, Raffaela noted a letter, sent by the Chairs of various House Committees to the President, regarding the latter’s approach to the Warsame case.  Unsurprisingly, the letter critiqued the Administration on various grounds. Fair enough. But it’s worth pausing over one of those grounds, if only for amusement value.

Among other things, the authors say their many concerns “are only heightened given the decision to handle Warsame’s case in a manner that directly contradicts pending legislation.”  Presumably the letter refers to the bill that recently passed the House, and that apparently would bar all detainee transfers to the United States – from Guantanamo or anywhere else.

This marks the second time that House Republicans have invoked the conflict between the Administration’s current policy and a pending detention bill.   The first came immediately after the Administration chose to pursue federal charges against Warsame.  The below is taken from a New York Times piece dated July 5th:

In a statement, the chairman of the House Armed Services Committee, Representative Howard P. “Buck” McKeon, Republican of California, denounced the administration’s decision.

“The transfer of this terrorist detainee directly contradicts Congressional intent and the will of the American people,” he said. “Congress has spoken clearly multiple times — including explicitly in pending legislation — of the perils of bringing terrorists onto U.S. soil.”

(emphasis added)

Since when is the President obligated to enforce a bill that has not yet been enacted (and might not be enacted at all)?

If senior members of Congress have made the choice to advocate, in public, for the novel idea that the executive branch should heed legislative proposals that have not yet been approved according to constitutional procedures, then they should also consider the corollary suggestion that the President should not exercise all of the legal authority actually granted to him by the laws currently in force. Come to think of it, the letter sort of does make that argument; recall that no operative statute bars detainee transfers to the United States from places other than Guantanamo.

It goes without saying that there are oodles of pending bills out there, which have not passed the two chambers of Congress and received the President’s signature – as they must, absent a veto override, in order to take effect.  Would Chairman McKeon and the letter’s other authors nevertheless critique the White House for not implementing the policies embodied in those bills?   By doubling down on the “pending legislation” claim, the letters’ authors certainly suggest as much.  You heard it here first: the financial regulators should treat the Dodd-Frank legislation as repealed.  And the State Department must withhold foreign assistance from any country that opposes the position of the United States at the United Nations.

UPDATE: a reader points out that earlier this month, the Solicitor General, in urging the Supreme Court to stay the execution of Humberto Leal, had emphasized pending legislation – namely, the Consular Notification Compliance Act of 2011.  (The bill would implement the International Court of Justice’s judgment in the Avena case, and create federal jurisdiction over certain treaty claims by death-row prisoners.)  It thus appears that, like Congress, the executive branch sometimes invokes unenacted statutes.

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