Without doubt, concerns about presidential abuse of power are exacerbated by President Obama’s record of riding roughshod over congressional powers. Three prominent examples:
1. Mr. Obama unilaterally amended our immigration laws and prohibited deportations of many illegal immigrants.
2. While recess appointments to federal positions are constitutionally permitted when Congress is in recess, in January 2012 the president made four recess appointments when Congress was not in recess.
3. When Obamacare was passed by Congress and signed into law by the president, the employer mandate was to begin in January 2014. Yet in July 2013, Mr. Obama unilaterally delayed the mandate until January 2015, safely after the November 2014 midterm elections.
There are other important aspects to the Bergdahl episode that have nothing to do with the president’s dismissive treatment of Congress. It is no small matter that five highly dangerous Taliban cutthroats were released with only minimal restrictions on their activities for a year. They are likely to return to their murderous ways; indeed it was because Guantanamo housed the most dangerous of the Taliban detainees that Congress enacted the law stipulating that any transfers be preceded by notification of the legislative branch.
Is it proper or lawful for a president to make a unilateral decision to strike a deal for a prisoner exchange involving the freeing of murderous terrorists so that a member of the military – one who apparently abandoned his unit – might be released? Or should Congress play a role in balancing the competing interests?
Given the virtually certain downside, one wonders why President Obama would have engaged in this sort of deal making. Some pundits have suggested he was seeking to divert attention from the Veterans Administration scandal that is emerging as yet another tarnish on the administration. Other observers suggest he miscalculated the fallout, assuming the rescue of an American soldier from the hands of barbarians would meet with blanket approval no matter what the means or the cost.
What is certain is that there will be hearings on these questions conducted by committees of an aroused Congress. What may make them different from prior ineffectual challenges to President Obama’s excesses is that this time both Democrats and Republicans seem genuinely upset.