Feds: Obama Broke Law with Bergdahl Swap

[dank69]

Is what I think I see you did there what you did there? If so,

Swapped the O for a zero? Ooo, so clever.

 

[Hayabusa Rider]

No, definitely not. It is absolutely within the purview of all three branches to determine what is and isn't constitutional and to act accordingly. It's the only way our system can function.

Under our accepted system of law we give the Supreme Court the final say but tons of decisions have to be made every year that don't involve their input and require interpretation by the various branches of government.

To use an extreme example, if Congress and the prior president signed a law that declared all guns in America were to be confiscated on the day before a new president were sworn in would he be compelled to enforce such an obviously unconstitutional law until the courts stepped in?

That's astounding. You've just given Presidents license to ignore or interpret any law in any arbitrary way by declaration. Show me that authority under the Constitution, or does that no longer apply?

 

[Hayabusa Rider]

Yeah because no president has ever negotiated with terrorist before!

Lol!

If negotiations follow the law then good. If not then no. Even Presidents shouldn't get away with it.

 

[ivwshane]

If negotiations follow the law then good. If not then no. Even Presidents shouldn't get away with it.

Besides not notifying congress in the 30 day time frame, what law did Obama break with this negotiation?

 

[Hayabusa Rider]

Besides not notifying congress in the 30 day time frame, what law did Obama break with this negotiation?

I don't know if any law was broken. I'm taking exception to the idea that Presidents ought to be able to break laws because they can. That's already been mentioned. Assuming no laws were violated I do not have a problem with the deal.

 

[werepossum]

That's astounding. You've just given Presidents license to ignore or interpret any law in any arbitrary way by declaration. Show me that authority under the Constitution, or does that no longer apply?

That was my first thought, but consider the alternative. If a law truly is un-Constitutional, should a President swear an oath to protect and defend the Constitution and then enforce un-Constitutional laws? Wouldn't it be better to refuse enforcement and therefore require its supporters to bring suit to provide its Constitutionality than to simply enforce the un-Constitutional law Congress has not yet gotten around to replacing? Imagine Dred Scott . . . I imagine many laws need to be repealed, but this does not happen because neither party's ox is being gored by them.

 

[fskimospy]

That's astounding. You've just given Presidents license to ignore or interpret any law in any arbitrary way by declaration. Show me that authority under the Constitution, or does that no longer apply?

As Werepossum said, the authority is the constitution itself. The president not only has the ability, but the DUTY not to enforce laws he finds unconstitutional, as his first duty is to uphold the constitution. It's what his oath of office is all about.

It seems strange that you apparently want the president to violate the constitution in the name of upholding the constitution.

 

[Angry Irishman]

Oh would that detail change the point of his post? I'm guessing that's a morbidly obese no.

Change it from being an ignorant statement....nope.

 

[Hayabusa Rider]

As Werepossum said, the authority is the constitution itself. The president not only has the ability, but the DUTY not to enforce laws he finds unconstitutional, as his first duty is to uphold the constitution. It's what his oath of office is all about.

It seems strange that you apparently want the president to violate the constitution in the name of upholding the constitution.

that's complete nonsense. Further, you know it. As you have said and I have never disagreed, presidents do not have to enforce every law that comes and that is the constitutional prerogative of the president. if congress makes a law that says you should be brought in chains and shackled to the Whitehouse the president does not have to obey it. That is decidedly different than Congress saying that cannot be done then the president's saying that law is unconstitutional and has you arrested brought and put in the stocks.

 

[fskimospy]

that's complete nonsense. Further, you know it. As you have said and I have never disagreed, presidents do not have to enforce every law that comes and that is the constitutional prerogative of the president. if congress makes a law that says you should be brought in chains and shackled to the Whitehouse the president does not have to obey it. That is decidedly different than Congress saying that cannot be done then the president's saying that law is unconstitutional and has you arrested brought and put in the stocks.

Actually those two are the same thing entirely.

I'm saying the president doesn't have to enforce unconstitutional laws, the same as you are. I would offer that the law journal paper I linked earlier about executive power and excess presents a really good way to look at it.

 

[werepossum]

Besides not notifying congress in the 30 day time frame, what law did Obama break with this negotiation?

From the OP's link:

“In addition, because DOD used appropriated funds to carry out the transfer when no money was available for that purpose, DOD violated the Antideficiency Act. The Antideficiency Act prohibits federal agencies from incurring obligations exceeding an amount available in an appropriation.”​

I don't know if any law was broken. I'm taking exception to the idea that Presidents ought to be able to break laws because they can. That's already been mentioned. Assuming no laws were violated I do not have a problem with the deal.

Obama evidently broke two laws, although personally I think the latter is a crock. I have a very hard time believing that we allocate money down to the costs of transporting individual prisoners. In any case, I don't think we've seen evidence that the agency's total spending has exceeded its appropriations, which seems to me to be clearly the point of the Antideficiency Act.

Sometimes breaking the law is the moral thing to do, even if the law is perfectly Constitutional. As an example, trespassing to save a life. Congress is leaky, and while I don't accept the idea that he would have been killed had the deal become public, I do think some in Congress would have tried to use this for political purpose. This is how Congress works. Remember Leaky Leahy? His example is the rule now. That would probably have made Obama unable to do the deal at an acceptable political cost. No deal, probably Bergdahl is eventually murdered or turned (if he isn't already.)

Nonetheless, Obama willingly broke one and arguably two laws, so he should face the appropriate penalty. Since this was (as far as we know) not out of political, personal or philosophical gain, but rather an honest attempt to do what he thought was right, I suggest we impound his putter for thirty days. Using his caddy's putter will give him time to think about what he's done.

 

[Hayabusa Rider]

Actually those two are the same thing entirely.

I'm saying the president doesn't have to enforce unconstitutional laws, the same as you are. I would offer that the law journal paper I linked earlier about executive power and excess presents a really good way to look at it.

So let me understand your position. If Congress says that illegals are to be detained Obama does not have to enforce that law. If Congress says that the government may not torture illegals, the President can say that is unconstitutional and do so since he's given the power to void laws as granted by the Constitution. The President in effect has been given complete authority to do whatever he pleases, and that is embodied in the Constitution, and you see no difference between any of these scenarios. It would appear Nixon was right after all. Whatever a President says is legal is, or is not. Not enforcing every law is in principle the same as Bush authorizing torture, and I mean real torture. That doesn't seem right regardless what some writers about law say.

 

[Hayabusa Rider]

From the OP's link:

“In addition, because DOD used appropriated funds to carry out the transfer when no money was available for that purpose, DOD violated the Antideficiency Act. The Antideficiency Act prohibits federal agencies from incurring obligations exceeding an amount available in an appropriation.”​

Obama evidently broke two laws, although personally I think the latter is a crock. I have a very hard time believing that we allocate money down to the costs of transporting individual prisoners. In any case, I don't think we've seen evidence that the agency's total spending has exceeded its appropriations, which seems to me to be clearly the point of the Antideficiency Act.

Sometimes breaking the law is the moral thing to do, even if the law is perfectly Constitutional. As an example, trespassing to save a life. Congress is leaky, and while I don't accept the idea that he would have been killed had the deal become public, I do think some in Congress would have tried to use this for political purpose. This is how Congress works. Remember Leaky Leahy? His example is the rule now. That would probably have made Obama unable to do the deal at an acceptable political cost. No deal, probably Bergdahl is eventually murdered or turned (if he isn't already.)

Nonetheless, Obama willingly broke one and arguably two laws, so he should face the appropriate penalty. Since this was (as far as we know) not out of political, personal or philosophical gain, but rather an honest attempt to do what he thought was right, I suggest we impound his putter for thirty days. Using his caddy's putter will give him time to think about what he's done.

Obama cannot break laws, remember?

 

[fskimospy]

So let me understand your position. If Congress says that illegals are to be detained Obama does not have to enforce that law. If Congress says that the government may not torture illegals, the President can say that is unconstitutional and do so since he's given the power to void laws as granted by the Constitution.

Yes. As I said before, the president has not only the authority, but the positive legal obligation not to enforce laws he believes to be unconstitutional. If he were to enforce laws he believed violated the constitution, he would in fact be committing a potentially impeachable offense and would be flagrantly violating his oath of office.

Presumably you don't want him doing that.

The President in effect has been given complete authority to do whatever he pleases, and that is embodied in the Constitution, and you see no difference between any of these scenarios. It would appear Nixon was right after all. Whatever a President says is legal is, or is not. Not enforcing every law is in principle the same as Bush authorizing torture, and I mean real torture. That doesn't seem right regardless what some writers about law say.

No. I don't think you're thinking about this logically. Let's break it down. This is the question: does the president have to enforce every law on the books regardless of what it is?

Let's use your example, but the other way: Say Congress got really pissed off one day and passed a law over his veto saying that the president MUST torture all Americans. Does the president have to do this until the courts strike it down? I think just about everyone would say that he clearly does not need to follow a law that is so blatantly unconstitutional.

If that's the case, then we've established that the president has the authority not to follow laws he believes are unconstitutional. Period. You might say that's an extreme example, and it is, but that doesn't matter. He either has discretion or he doesn't.

If he has discretion the question is then simply how far that discretionary authority goes, which is of course what this discussion is all about. I think it has gone much too far, but a lot of that is simply the unwillingness of Congress to exert its influence. Congress could stop it if they wanted to, but neither Congress (nor, sadly, the US public) want to do that.

 

[fskimospy]

Obama cannot break laws, remember?

The president can definitely break unconstitutional laws.

 

[marvdmartian]

Just add it onto the pile of crap he's gotten away with, because the system is so badly broken. :\

 

[xBiffx]

The president can definitely break unconstitutional laws.

I've thought about it a bit more and this is where the divide is formed I believe. The definition of an unconstitutional law.

I would say that a law passed by the legislative branch, signed by the executive, and has yet to be reviewed by the judiciary fits the definition of a constitutional law. 2/3 of government have upheld it. Now the judiciary can still strike it down if they wish.

I would say that a law passed by the legislative branch only is not necessarily constitutional until it is signed by the executive. Also, if a law is under review by the judiciary then it is also not necessarily constitutional. In either case, any part of the government can choose to do what they want until it is upheld by 2/3 of government.

In an example of a veto. The legislative branch can pass a law, have it be vetoed by the executive, and still override that veto. It would be 100% unconstitutional for the executive to ignore that law. So in this respect, some are trying to say that a signing statement carries more weight than a veto when in reality it carries no weight.

 

[fskimospy]

I've thought about it a bit more and this is where the divide is formed I believe. The definition of an unconstitutional law.

I would say that a law passed by the legislative branch, signed by the executive, and has yet to be reviewed by the judiciary fits the definition of a constitutional law. 2/3 of government have upheld it. Now the judiciary can still strike it down if they wish.

Presidents and Congresses have frequently disagreed on what is constitutional, and current presidents and congresses are not required to share their predecessor's interpretations. For example, I bet Richard Nixon thought a lot of things were constitutional that he might have signed into law that another president wouldn't. There's no reason for them to have to follow that.

I would say that a law passed by the legislative branch only is not necessarily constitutional until it is signed by the executive. Also, if a law is under review by the judiciary then it is also not necessarily constitutional. In either case, any part of the government can choose to do what they want until it is upheld by 2/3 of government.

In an example of a veto. The legislative branch can pass a law, have it be vetoed by the executive, and still override that veto. It would be 100% unconstitutional for the executive to ignore that law. So in this respect, some are trying to say that a signing statement carries more weight than a veto when in reality it carries no weight.

I'm not trying to argue that signing statements carry any weight, I'm simply stating the fact that the president has the ability to not enforce laws he thinks are unconstitutional. It doesn't matter if a previous president thought they were, because he's not the president anymore.

I've already given several examples where I all believe we agree the president could legally ignore a law. So again I feel like this just comes down to what kind of laws he can ignore.

 

[Sattern]

They not only released leaders who still have influence in their organization, but they now live to tell the secrets of what happens inside the terrorist camps.

I don't get why they even lock people up for political activities, war is war you don't see people kidnapping American officials as common as you see Taliban and others.

 

[Tombstone1881]

Nice to see that Republicans support leaving soldiers behind. Makes me wonder why they cry so those huge crocodile tears over Benghazi....

That is so true. Republicans didn't shed one single tear about any of the 13 embassy/consulate attacks killing 60 people during Bush's reign, but one attack under Obama and the republicans start crying like little girls and call for impeachment.

Republicans still can't take YES for an answer. Many of them are on record demanding that Obama do something, anything, to bring Bergdahl home, and when he grants them their wishes, they all turn against him and call their military hero "a deserter" who deserves to be left there. It is yet another example of the thousands of times that the republicans get their way, but are still not happy!

 

[Hayabusa Rider]

This is the question: does the president have to enforce every law on the books regardless of what it is?

This is not the same as actively violating every law on the book at will.

If that's the case, then we've established that the president has the authority not to follow laws he believes are unconstitutional. Period. You might say that's an extreme example, and it is, but that doesn't matter. He either has discretion or he doesn't.

I believe you are conflating issues. There is no mandate, no law or Constitutional requirement that every law be enforced. Note that last word. Enforced. Now the President does not have to enforce a law that says illegals must be tortured. We both agree. Now suppose that Congress says that illegals must not be tortured. If the President chooses to not enforce that law then others are free to do as they will according to your logic. Caveat-this is a hypothetical and doesn't take into account other agencies, such as states and their law enforcement. Let's go further. Let's say that the President not only fails to enforce the law, but decides that he wishes to actively torture immigrants. He could, according to you, decide that no law applies to him and shoot people in the head right on the white house lawn. In effect he can void the Constitution because that document is the metric that determines what may and may not be passed as law, and it is laws which have consequence. In effect you've decided that a President is omnipotent and there's no restraint whatsoever and this is Constitutionally valid, to the point that the President can effectively void the entire document. Following this logic the power invested in the Executive Branch to keep all illegals out of prison camps gives him the right to summarily execute them. All he has to do is say that the Constitution gives him the right to void any and all restraints. I don't find this to be a commonly held sentiment among scholars.

 

[Hayabusa Rider]

The president can definitely break unconstitutional laws.

There are no unconstitutional laws until they are determined to be such by someone. You give the President the right to make that decision on his own, ergo every law is what he says it is in that regard.

 

[Jaskalas]

I'm simply stating the fact that the president has the ability to not enforce laws he thinks are unconstitutional.

You cloak this discussion with constitutionality, but what you're saying is the President effectively decides what laws exist. They do not exist unless enforced, and he controls the enforcement. Granting amnesty has nothing to do with the constitutionality of border security. It has to do with political opposition to the law as it stands.

The President gets to do whatever he feels like doing. He's above the law, and you stand for that. I question it and seek ways to remedy the disparity.

 

[Hayabusa Rider]

You cloak this discussion with constitutionality, but what you're saying is the President effectively decides what laws exist. They do not exist unless enforced, and he controls the enforcement. Granting amnesty has nothing to do with the constitutionality of border security. It has to do with political opposition to the law as it stands.

The President gets to do whatever he feels like doing. He's above the law, and you stand for that. I question it and seek ways to remedy the disparity.

I think the idea of enforcement is distinct from Constitutionality. According to Eskimospy the President can disobey unconstitutional laws, but who determines what is Constitutional or not? The President. He's all powerful.

On the other hand how does one enforce all law? How does one pick and choose? The first part is easy. You can't. The second is easy too. You pick whatever gets your party the most votes. That's always been allowed. Absolute power? That's something entirely different. The inability to enforce all things at all time would be a given to the writers of the Constitution. The latter would not.

 

[fskimospy]

You cloak this discussion with constitutionality, but what you're saying is the President effectively decides what laws exist. They do not exist unless enforced, and he controls the enforcement. Granting amnesty has nothing to do with the constitutionality of border security. It has to do with political opposition to the law as it stands.

The President gets to do whatever he feels like doing. He's above the law, and you stand for that. I question it and seek ways to remedy the disparity.

There's no 'cloak', there's just the Constitution. I am for enforcing the Constitution, you believe that Congress can pass a law that makes the president violate the Constitution.

I acknowledge the responsibility of all branches to uphold the Constitution, I hope you come to that feeling as well.