The Legality of the Bergdahl Swap

“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president.”  These are the words of Barack Obama during the campaign in 2008.  In 2014, Congress passed and Obama signed into law a bill banning any Department of Defense funds from being used to release any prisoners from Guantanamo Bay without giving Congress 30 days advance notice.  In the Bergdahl prisoner transfer, no such notice was given.  In short, this was a classic case of Congress asserting their power through control over the purse.

The power of the purse is Congress’ trump card and its most potent weapon against an over-reaching Executive.  The Constitution bars the President from expending money it does not allocate and even more so when a law specifically prohibits a President from doing so.  It is right there in Article I, Section 9.

There are several reasons posited for the reasons Congress fails to use their powers effectively.  An ineffective Republican leadership is one key reason.  They are afraid of the optics, although it behooves this writer to understand how exerting your Constitutional powers creates “bad optics.”  Simply, there is a lack of political will on the part of the GOP in confronting Obama and checking Executive power.  Additionally, many on the other side of the aisle will exert their partisan nature and side with a Democratic president rather than exert their constitutional powers.  They would rather embarrass the Senate than the President.

The media is also at fault.  When a spending bill is passed by both houses of Congress, Congress has done its job.  If Obama or any president wishes to veto the spending bill, then he is responsible for any “government shutdown,” not Congress.  In effect, they are preying on the civic stupidity and ignorance of the public who fail to grasp how bills are passed and become law.  Yet, the Republican leaders in Congress stand paralyzed out of fear for being blamed for shutting down the government.  Throw in a dysfunctional budget process- which the GOP leadership has not fixed- and it only adds to the confusion and gives the media and the Democrats the excuse they need to deflect blame onto the Republican Party.

While many are focusing on the actual swap itself (and this writer believes it was wrong), the true focus should be on Obama’s flouting of a “clear and unambiguous law,” as the GAO characterized it.  And he has done it before in Libya.  Regardless of whether he violated the War Powers Act (he arguably did), he also funded that operation with defense funds allocated for other items.  If Congress does not hold his feet to the fire over committing American combat personnel to a foreign conflict, then surely they won’t hold his feet to the fire over the Bergdahl swap.

As with Libya and every other unconstitutional exercise of power by Obama, he spent money he didn’t have.  To make matters worse, he spent money from the Treasury that Congress specifically banned him from spending.  As long as Congress allows him to get away with it, he will.  While the Republican Party deserves blame for allowing this, the Democrats may be the ultimate losers.  If they refuse to check the power of the executive and restore the system of checks and balances our Founders wrote into the Constitution, then nothing is to stop a Republican president from doing the same.  Should that happen and they then complain, Democrats would be exposed as the hypocrites they are, and the fact that King Barack I took the imperial presidency to a whole new level.