Faithless Execution: Presidential Dereliction and Duplicity

My new book, Faithless Execution, is principally about presidential lawlessness. In addressing that topic, I make the point that it is not lawless for a president to refuse to execute a law as to which he has a good faith constitutional objection.

The Framers, after all, were not just worried about executive overreach; they were at least equally concerned about what Hamilton referred to as “The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” This is relevant to the ongoing controversy about whether, in carrying out his unconscionable swap of five senior Taliban and Haqqani network terrorists, the president acted lawlessly.

A congressional statute—the National Defense Authorization Act—presumes to impose a requirement of 30-days’ notice to lawmakers before the president may transfer enemy combatant detainees out of Guantanamo Bay. There is no question that President Obama willfully ignored this statute—the administration admits as much. But was he obliged to comply with it?

As I’ve been contending, there is a very colorable argument—I would say, a convincing argument—that the statute is unconstitutional. The commander-in-chief in wartime has near-plenary power over the disposition of enemy combatants, and supremacy in the conduct of foreign affairs. Congress may properly use its power of the purse to deny the president funds to transfer prisoners—particularly to transfer them into the United States. But it may not act as super-executive by micromanaging how the president carries out his prerogatives. We may find the president’s decisions in this regard to be reprehensible—I certainly do. But that does not make them unconstitutional … what is unconstitutional is a statute that purports to trim the president’s constitutional powers.

Is that the end of the matter? Not by a long shot. As I’ve also contended, the president’s failure to comply with a dubious statute is a mere footnote to his truly egregious offense: replenishing enemy forces at a time when the enemy is still conducting offensive terrorist operations against our armed forces. It would be difficult to fathom a more outrageous dereliction of duty by the commander-in-chief.

Moreover, if you want to fret over statutory violations, I would spend less time on the 30-day notice law and more on the federal criminal law that makes material support to terrorists a serious felony. The president has knowingly provided personnel—key, experienced, highly effective jihadists—to terrorist organizations that are still very much at war with the United States. That is material support to terrorism.

But there is an abuse of power here that is just as grave as dereliction of duty (which is an impeachable offense). As Faithless Execution recounts, in agreeing to grant Congress what Madison called the “indispensable” impeachment power, the Framers stressed the president’s fiduciary obligation to Congress and the American people. Madison, for example, explained that a president would surely “be impeached and convicted” if he did anything as “atrocious” as misleading the Senate in connection with the ratification of a treaty. And James Iredell similarly stressed the duty to be honest with the legislature, opining in the context of impeachment that the president...

...must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives.

He added that it would be untenable to abide a president’s fraudulently inducing senators “to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them.”

This, too, has a great deal of significance to our consideration of the president’s release of senior Taliban and Haqqani commanders. As the Weekly Standard’s Jeryl Bier points out, the subject of transferring the Taliban detainees arose at a White House press conference nearly a year ago. At that time, Obama spokesman Jay Carney made the following public commitment on behalf of the president:

With regard to the transfer of Taliban detainees from Guantanamo Bay, we have made -- the United States has not made the decision to do that, though we do expect the Taliban to raise this issue in our discussion, if and when those discussions happen. As we have long said, however, we would not make any decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law. [Emphasis added.]

Now, as contended above, the president has every right not to execute a law he has a good faith reason to believe is an unconstitutional limitation of his Article II powers. In our system, however, he has to do it honestly. Defrauding the Congress by publicly committing to abide by a law—even a dubious one—and then willfully refusing to abide by that law in order to sidestep certain congressional protest is an appalling breach fiduciary duty. Certainly the president may disagree with Congress, but he must not deceive Congress and the American people.

High crimes and misdemeanors, as Hamilton observed, are acts that “proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.” A commander-in-chief who replenishes the forces of enemies knowing those enemies are still unleashing violent jihad against our troops, a president who is intentionally duplicitous in his dealings with Congress, profoundly abuses his public trust. That is a good deal more important than the 30-day notification requirement.