Executive Power

One or Two Other Statutes the President Likely Disregarded in The Bergdahl Deal [UPDATED]

By Jack Goldsmith
Monday, June 2, 2014, 7:45 PM

Earlier today I explained why the President almost certainly disregarded Section 1035 of the 2014 NDAA when he swapped the GTMO detainees for Bergdahl.  The President probably disregarded another statute as well, Section 8111 of the Fiscal Year 2014 Consolidated Appropriations Act, which provides:

None of the funds appropriated or otherwise made available in this Act may be used to transfer any individual detained at United States Naval Station Guantanamo Bay, Cuba to the custody or control of the individual's country of origin, any other foreign country, or any other foreign entity except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.

Disregarding a spending restriction potentially implicates yet a third statute, the Anti-Deficiency Act, which prohibits a federal official from making or authorizing an expenditure or obligation “exceeding an amount available in an appropriation or fund for the expenditure or obligation.”  (The Act contains an exception for “personal services exceeding that authorized by law” for “emergencies involving the safety of human life or the protection of property,” but despite the underlying emergency involving Bergdahl’s life, I do not believe the exception, which is designed for certain government who work during shutdowns, applies here.)   The Executive branch has long maintained (see here at 6-7 and n. 6) that under many circumstances, Congress cannot use an appropriations restriction to regulate a presidential power otherwise beyond its control.  The administration would thus likely argue that if the notice requirement in Section 1035 is unconstitutional, so are Section 8011 and the Anti-Deficiency Act as applied here.  However, if the President’s Article II override argument is wrong – and as I said in my last post, the thinness of controlling precedents makes it hard to tell – then it appears that the administration has violated not just the ban on transfers without notice, but also the related appropriations restriction and the Ant-Deficiency Act.  (It might also have violated Article I, § 9, cl. 7 of the Constitution, which provides that “no money shall be drawn from the treasury, but in consequence of appropriations made by law.”)

P.S.  A terminological point that most Lawfare readers will already understand: When the President “disregards” a statute on constitutional grounds he is not “violating” the statute if his constitutional argument is sound.  CNN legal analyst Jeffrey Toobin stated today that President Obama “clearly broke the law” when he acted contrary to Section 8011, the notice requirement on transfers.  “The law is on the books, and he didn’t follow it,” Toobin added.  The last statement is true but it does not follow that the President violated the law.  It all depends on the validity of the President’s constitutional argument.  If the statute impinged on an exclusive presidential power, the president properly disregarded it and did not violate it.  We have not yet (and likely will not see) the Executive branch’s analysis of the constitutional question, assuming there was one.  But, to repeat, presidential disregard of a statute is not a violation of the statute if the statute is contrary to Article II.  For further explanation, see this letter by Walter Dellinger.

UPDATE to the P.S.: Someone pointed me to the complete transcript of the interview with Toobin, and two points are of note.  First, Geoffrey Corn, who was also part of the interview, made the point that “the Constitution vests the president with the exclusive authority as commander-in-chief,” and that a law “that intrudes upon that authority, that detracts from his ability to perform his command function, is a law that candidly he shouldn't comply with.”  And second, Toobin, after noting that the President broke the law, acknowledged that “it may be that he was justified. It may be that the law is in fact unconstitutional.”  Toobin should have made clear that non-compliance with an unconstitutional law is not breaking the law.  But in any event, he is certainly right about this:

I think, as with most situations like this, it is somewhat a legal issue, but it's mostly a political issue. There's not going to be any lawsuit about this. Congress can't sue the president for violating this aspect of the law. Congress will take action. They will hold hearings. They will express their outrage.