Legal Commentary

No ?Constitutional Signing Statement? for the Guantanamo Transfer Restrictions

By John Elwood

As I suspected, President Obama didn?t go through with issuing a so-called ?constitutional signing statement? with respect to the recent legislation placing restrictions on the transfer of detainees out of Guantanamo, through which he would have noted his constitutional objections to the legislation and construed it not to affect his authority to transfer the detainees, or stated that the legislation was unconstitutional and did not validly abrogate his ability to make such transfers. I think such a position would have been consistent with signing statements of Presidents of both parties back to at least President Reagan, and (if memory serves) even President Carter. (Which is not to say that those Presidents put those stated positions into action; in my experience, most legislative provisions that are the subject of constitutional signing statements are implemented as written, and the signing statement is done mostly to ?lay down a marker? with Congress.)

Instead, President Obama issued a much milder statement that criticized the restrictions on policy grounds, stating that the restrictions ?undermine[] our Nation?s counterterrorism efforts and ha[ve] the potential to harm our national security.? He also announced that ?my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.?

The Washington Post praised the President for ?appropriate restraint in refusing to use the signing statement in th[e] way? most of his recent predecessors did, but said he showed ?too much restraint in opposing the provisions? during the legislative process and for not vetoing them (although they were part of an important defense authorization bill). Well, whatever you think of the President?s actions, it?s clear he didn?t use the signing statement of this bill to pick a fight with the new Republican majority in the House.

Full post as published by The Volokh Conspiracy on January 09, 2011 (boomark / email).