Constitution Daily

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Podcast: Did President Obama violate the Constitution in the Bergdahl case?

June 12, 2014 by NCC Staff


Leading experts Eric Posner and Ilya Somin debate if President Barack Obama had a constitutional right to approve U.S. Army Sgt. Bowe Bergdahl’s recent release from captivity, without notifying Congress.

Barack_Obama_on_phoneThe National Constitution Center’s Jeffrey Rosen moderated a spirited podcast discussion about the President’s constitutional powers related to Congress, related to the Bergdahl case.

Obama’s congressional opponents and the administration are now arguing over the process that led to an exchange involving Bergdahl and five Taliban members held at the U.S. facility in Guantanamo Bay.

Last summer, a similar debate raged when the President pondered U.S. military intervention in Syria’s civil war. Eventually, President Obama referred the Syria decision to Congress and no military action took place.

In the Bergdahl case, the debate is over the National Defense Authorization Act of 2014, which says that the Defense Department must notify Congress 30 days before any transfer of prisoners from Guantanamo Bay and provide a detailed rationale for a transfer.

Obama added what is called a signing statement to the bill in December 2013, saying it put “unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles.”

“The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers,” Obama said at the time.

Joining us are two leading experts of the subject of executive powers.

Ilya Somin is Professor of Law at George Mason University School of Law. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. Professor Somin also contributes to the popular Volokh Conspiracy law and politics blog.

Eric Posner is the Kirkland and Ellis Distinguished Service Professor of Law, at University of Chicago. Professor Posner has written numerous law books and articles, and his current research focuses on international law, immigration law, and foreign relations law.

You can listen to the full podcast in the player below, of by clicking the following link:

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