The Obama Administration has backed away from its suggestions over the weekend that it failed to comply with the notice requirement in Section 1035 of the 2014 NDAA on constitutional grounds. It is now claiming, as Marty Lederman notes, that it complied with the statute because it determined “that the notification requirement should be construed not to apply to this unique set of circumstances.” The administration statement adds:
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.
I said yesterday that I would be surprised if the administration indulged “an implied exception to a national security statute based on emergency situations not contemplated by Congress.” That is precisely what it has now done, based on the premise that Section 1035’s notice requirement “would significantly alter the balance between Congress and the President, and could even raise constitutional concerns.” I am surprised for two reasons.
First, this sounds like a constitutional avoidance argument. Such arguments can be valid, but they require statutory ambiguity as a prerequisite. As I explained yesterday, Section 1035 is crystal clear. And the administration points to no ambiguity in its statement.
Second, the administration’s new interpretive position was harshly criticized by the President and his advisors when deployed by the Bush administration. Candidate Obama denounced it in 2007 when he said, in the context of signing statements (my emphasis): “The problem with [the Bush] 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 . . . .” The administration’s statement tracks the President’s signing statement for the NDAA, and is exactly what candidate Obama decried. Marty more clearly explained the objection in 2008: “A second danger to the rule of law arises when, instead of directly challenging a statutory restriction on the President’s powers as unconstitutional, the Executive Branch relies on constitutional concerns about the statute to justify a strained interpretation of the statute so that it no longer means what Congress said.”
I suppose that the administration believes it will catch less heat from a flatly unconvincing reading of the statute than from a contested constitutional override argument. Perhaps it is right.