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Marco Rubio and Ted Cruz: Careful Critics of Obama's Bergdahl Swap Marco Rubio and Ted Cruz: Careful Critics of Obama's Bergdahl Swap

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Congress

Marco Rubio and Ted Cruz: Careful Critics of Obama's Bergdahl Swap

The 2016 contenders won't box themselves in on the president's use of the controversial "signing statement."

Ted Cruz(Andrew Burton/Getty Images)

Republicans are outraged that President Obama ignored U.S. law and released Taliban suspects from Guantanamo without first notifying Congress. This, even as the "signing statement" that Obama attached to the law foretold his intention.

But guess whose pique is a little more nuanced.

"There have been multiple presidents who have used signing statements for different purposes, so it is wrong to speak of signing statements in blanket terms," said Sen. Ted Cruz as a preamble to his robust criticism of the president's decision to swap Taliban suspects for American prisoner of war Bowe Bergdahl.

 

Another leading 2016 presidential hopeful, Marco Rubio, offered a bit of the same. He dodged the question of the signing statement altogether, implying that presidents do indeed have the authority to do what's necessary to ensure U.S. security.

"Most of these laws have a national security waiver built into them," he said. "The more important issue here is not whether Congress received a heads-up. The most important issue is that five extremely dangerous anti-American terrorists have been released, and I think a precedent has been set."

Many presidents have attached signing statements to legislation, but their use as tools by the executive branch to shape laws started under the Reagan administration, when then-lawyer, now-Supreme Court Justice Samuel Alito issued a memo encouraging the expansion of executive power through such statements.

President George W. Bush issued more than 150 signing statements that declared how he intended to enforce the law, and he claimed constitutional authority to make changes or disregard parts of the law if necessary, a controversial practice that prompted the American Bar Association to study its constitutionality and ultimately issue recommendations against it.

Obama said during his first campaign for the White House that he would not use statements to nullify congressional instructions, and while he has issued relatively few signing statements compared with his predecessor, the one he is using now to defend the Bergdahl swap appears to violate that campaign promise.

There's one Republican on the 2016 leader board who hasn't shied away from directly addressing the use of signing statements. That's Rand Paul, often the most vociferous critic of not only Obama but the expansion of executive power.

"I objected to Bush's signing statements, I objected to this president's signing statements," he told National Journal. "That would be akin to the president legislating. It's unequivocally unconstitutional."

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