Following Up on Signing Statements

By Benjamin Wittes
Thursday, January 6, 2011, 9:50 AM

Readers interested in my post from yesterday will find this document useful; prepared by OLC veterans from the Clinton administration in response to the controversy over the Bush administration's use of signing statements, it makes many of the same points I do in my post and contains a good deal of source material. A 2009 memo issued by President Obama makes some of the same points as well in laying out Obama's approach to signing statements.

On a different subject, the constitutional merits of the spending restrictions, at least those pertaining to transfer (as opposed to those preventing prosecution in federal court) may well pass muster. In his concurrence in the D.C. Circuit's Kiyemba II decision, Judge Brett Kavanaugh wrote the following:

Congress possesses express constitutional authority to make rules concerning wartime detainees.   See, e.g., U.S. CONST. art. I, § 8 (“Congress shall have Power  . . . To . . . make Rules concerning Captures on Land and Water”).  The constitutional text, Justice Jackson’s  Youngstown opinion, and recent Supreme Court precedents indicate that the President does not possess exclusive, preclusive authority over the transfer of detainees.   See Hamdan v. Rumsfeld, 548 U.S. 557 (2006)Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).  Except perhaps in a genuine, short-term emergency, the President must comply with legislation regulating or restricting the transfer of detainees.  In other words, under the relevant precedents, the President does not have power to trump legislation regarding wartime transfers in a Youngstown  category-three situation.  To be sure, there are weighty policy reasons why Congress may not seek to restrict the Executive’s transfer authority or to involve the Judiciary in reviewing war-related transfers.  That presumably explains why Congress has not done so.  But to the extent Congress wants to place judicially enforceable restrictions on Congress possesses express constitutional authority to make rules concerning wartime detainees.   See, e.g., U.S. CONST. art. I, § 8 (“Congress shall have Power  . . . To . . . make Rules concerning Captures on Land and Water”).  The constitutional text, Justice Jackson’s  Youngstown opinion, and recent Supreme Court precedents indicate that the President does not possess exclusive, preclusive authority over the transfer of detainees.   See Hamdan v. Rumsfeld, 548 U.S. 557 (2006);Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).  Except perhaps in a genuine, short-term emergency, the President must comply with legislation regulating or restricting the transfer of detainees.  In other words, under the relevant precedents, the President does not have power to trump legislation regarding wartime transfers in a Youngstown  category-three situation.  To be sure, there are weighty policy reasons why Congress may not seek to restrict the Executive’s transfer authority or to involve the Judiciary in reviewing war-related transfers.  That presumably explains why Congress has not done so.  But to the extent Congress wants to place judicially enforceable restrictions on Executive transfers of Guantanamo or other wartime detainees, it has that power.
It is perfectly dreadful policy whether it passes muster or not.