White House officials are drafting a statement for President Barack Obama to issue when he signs the latest military spending bill, rejecting provisions attached to the legislation that drastically limit the executive branch's ability to close the U.S. prison at Guantanamo Bay.
Obama administration lawyers see some of those provisions as comprising a clearly unconstitutional overreach by Congress into matters of prosecutorial discretion and foreign relations -- two areas of executive-branch preeminence.
But depending on the manner in which these views are expressed, the White House itself risks upsetting the balance of power between the branches of government.
That's because there are signing statements, and there are signing statements.
Constitutional scholars agree that Obama would be well within the traditional presidential purview if he used such a statement to express his intention to seek a congressional reversal of the provisions -- or even if he said that, absent such a reversal, he is prepared to act inconsistently with the statute and defend his action publicly and in court as being based on well-founded constitutional principles.
The more alarming option would be for him to instead follow the George W. Bush-era practice of unilaterally asserting his right to ignore a statute, with only the vaguest of explanations and without an avenue for appeal.
But that would clearly violate Obama's own March 2009 declaration that he would restore signing statements to their historical, uncontroversial role.
The provisions at issue in the bill would prohibit the transferring of detainees from Guantanamo to the United States for any purpose -- including prosecution -- and would limit the ability to transfer them to foreign governments.
In December, Attorney General Eric Holder sent a letter to congressional leaders calling the prohibition on stateside transfers "an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects."
Calling the prosecution of terror suspect in civilian courts "one of our most potent weapons in the fight against terrorism," Holder said the provisions would "set a dangerous precedent with serious implications for the impartial administration of justice."
The bill even goes so far as to specifically identify one terror suspect, Khalid Sheikh Mohammed, as ineligible for a domestic trial. Holder noted that he had not found any example "in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes."
The Constitution is, of course, pretty explicit about what a president can do when he doesn't agree with legislation passed by Congress.
"He can veto the legislation," said Bruce Ackerman, a Yale Law School professor and author of a new book about presidential power, The Decline and Fall of the American Republic.
That would be a perfectly reasonable response here, Ackerman told HuffPost. "The idea that Congress wouldn't come back with funding for Afghanistan is fanciful. Of course it would. But of course the president would have to spend some political capital."
A less ideal but still acceptable option, Ackerman said, would be for Obama to announce that he opposes the provisions, and may decide later than the facts and his public responsibilities require him to act otherwise, in which case there will be a concrete act that can be publicly challenged and that he will be prepared to defend. The only hangup there is the issue of whether Congress -- or anyone -- would actually be recognized as having legal standing to sue.
Ackerman's biggest fear, however, is that a more Bushian response may appeal to the Obama White House -- as it has on a surprising number of national security issues.
Under Bush, lawyers loyal to the president unilaterally adjudicated the law, without any public or adversarial process.
But rather than entirely reform the system, Obama has simply replaced those lawyers with his own. "Right now, we have this structure in which the 25 members of the [Justice Department's] Office of Legal Counsel and the 40-odd members of the White House counsel's office have overwhelming institutional incentive to tell the president what he wants to hear," Ackerman said.
The question, then, is whether in cases like this they will choose to adjudicate the law -- or prepare to argue their interpretation in court.
"We don't want to give the world -- or the executive branch -- the impression that a thoughtful elaboration of what the law is can be reached in an ex parte fashion by advocates of the president after a week or two of frantic activity," Ackerman said.
Professor Christopher Kelley, a professor at the Miami University of Ohio who has made a study of signing statements, expressed surprise at the intrusive nature of the congressional provisions. "It seems clear to me that the administration has to issue a formal challenge," he told HuffPost. "My sense is they issue the challenge and then work with the Congress to fix the problem sections. The White House should also go public with their fight, focusing on the politics of the provisions as having nothing to do with protecting national security. "
Ackerman, in his book, advocates a long-term solution to constitutional arguments between the branches of government: A new "Supreme Executive Tribunal" charged with hearing and resolving such conflicts.
The president's lawyers would still frame legal opinions for executive departments and the White House, but those opinions would have only provisional authority, subject to adjudication by the new tribunal.
"On this particular issue, Obama happens to be right," Ackerman said, concluding that Congress has dramatically overreached in the Guantanamo-related provisions. "But that's a different point. If we're going to say the president gets to decide when Congress overreaches, this is a formulation for willfulness."
Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to his RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.
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