Monday, January 3, 2011
ProPublica's Dafna Linzer wrote today on the Huffington Post that the Obama administration is considering how to react to congressional limits on transferring Guantanamo detainees to the United States (even for Article III trials) and on closing the detention facility. We posted on the limits here.
Among the options under consideration: a signing statement registering the administration's opinion that those restrictions are unconstitutional.
The Obama administration early on signalled its aversion to signing statements (but then issued its first signing statement just days later).
Congressional restrictions on transferring detainees and closing the facility seem to call out for a constitutional objection by the White House. The only question is this: Is a signing statement appropriate here (or ever)?
Under the administration's standards, it probably is. President Obama issued a memo early in his presidency that he would "act with caution and restraint, based only on interpretations of the Constitution that are well-founded." Congressional restrictions here intrude into areas reserved to the executive (prosecuting the law) and violate separation of powers, satisfying this standard.