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.”

WASHINGTON, DC - OCTOBER 16: U.S. Sen. Ted Cruz (R-TX) speaks after meeting with Republican senators regarding a bipartisan solution for the pending budget and debt limit impasse at the U.S. Capitol October 16, 2013 in Washington, DC. The Senate announced that it had reached a bipartisan deal on funding the federal government and the extending the nation's debt limit after 16 days of a government shutdown.
National Journal
Clara Ritger
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Clara Ritger
June 10, 2014, 2:53 p.m.

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.”

Elahe Izad contributed to this article.
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