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Obama may again need an executive order to close notorious prison

Demonstrators take part in a protest Protesters call for the closure of the Guantanamo Bay prison on Monday January 11, 2016 in front of the White House in Washington, D.C. US President Barack Obama is expected to present his plan on closing the facility during his final State of the Union address. AFP PHOTO/MANDEL NGANMANDEL NGAN/AFP/Getty Images


Barely a year from now, Barack Obama will climb aboard Marine One for the last time and the big green-and-white helicopter will lift off the White House South Lawn ending eight years of his presidency.

Tuesday, in his last State of the Union address to Congress, the President will lay out what he wants to get done this year, including making good – with or without Congress – on the promise to shutter Guantanamo's notorious prison, a vow he made on his first day in the White House.

Closing Guantanamo may need another executive order – the tool Mr. Obama has turned to despite the fury of critics who accuse him of monarchical overreach and trampling on the Constitution.

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Mr. Obama has said he "will wait until Congress has definitively said 'No' to a well thought-out plan with numbers attached to it before we say anything definitive about my executive authority" to close Guantanamo. But he is well aware that the defence bill he signed last month included, again, an express provision against using any federal money to move prisoners from Guantanamo to the United States.

With hostile Republicans controlling both Houses of Congress and lawmakers across the country preoccupied with elections, Mr. Obama knows there will be no sweeping legislative triumph in his final year to burnish his legacy, although Republicans will likely back the Trans-Pacific Partnership and a compromise is possible on criminal-justice reform.

Otherwise, to get things done – such as closing Guantanamo – before he's done in office, Mr. Obama knows that he must use executive orders – presidential fiats – and hope they survive not only the wrath of his critics. For years, Mr. Obama has made no secret of the fact that he's fed up with Congress and plans to circumvent it.

"Wherever and whenever I can take steps without legislation to expand opportunities for more American families, that's what I'm going to do," he vowed two years ago in his State of the Union.

That didn't just enrage his political enemies. Even among constitutional scholars, his go-it-alone stance raised disquiet.

"The presidential pledge to effectively govern alone is alarming," warned Jonathan Turley, a nationally recognized legal scholar and law professor at George Washington University.

Presidents issue hundreds of signed directives. Only a handful are sweeping or controversial. Occasionally, they make history. An executive order is a presidential directive with the force of law but not the permanence of legislation. Once signed, a presidential executive order is law. But it can be rescinded by the President, erased by his successor or ruled unconstitutional by the Supreme Court.

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"This is not about executive orders, every president issues executive orders. Most of them, though, do so within the law," said John Boehner, an Ohio Republican and then Speaker of the House of Representatives, in July, 2014.

Mr. Obama defends his deliberate end run around what he regards as Republican intransigence, claiming he has a duty to act when Congress refuses to.

On immigration, the legality of Mr. Obama's 2014 executive order – which offered more than five million unlawful residents of the United States, mostly Hispanics, quasi-legal status including the right to work and a promise that they won't be deported – will likely be decided by the Supreme Court this summer. Already, it has lost two legal rounds, first in a Texas federal district court, then on appeal. Texas and 25 other states challenged the constitutionality of Mr. Obama's order. An earlier presidential order, giving similar status to upward of a million young people brought unlawfully into the United States as children would also likely fail if the Supreme Court rules that Mr. Obama overstepped his executive authority.

Mr. Obama's most recent executive order on tighter gun control is more modest but no less contentious. It imposes a requirement that gun sellers – even small ones and those selling to friends or relatives – undertake federally mandated background checks on buyers. Gun legislation passed in 1986 exempted private sellers, defined as those who don't rely on gun sales as their principal livelihood, from the background-check requirement. Mr. Obama claims he is closing what's commonly known as the "gun show loophole." His opponents say he's writing new law.

The President insists he's an authority and knows what he is doing is legal.

"I taught constitutional law – I know a little bit about this," he said during last week's impassioned – and sometimes teary – speech on gun purchasers.

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The nine justices on the Supreme Court will decide whether Mr. Obama the law professor is right about what Mr. Obama the President can do unilaterally.

By some measures, Mr. Obama has reached for the presidential pen to issue presidential orders far less than many of his two-term predecessors; he has issued executive orders on average 33 times a year compared with George W. Bush who averaged 36 or Bill Clinton with 46 or Ronald Reagan with 48. But critics assert it is the sweeping scope of Mr. Obama's orders and using them to make law, not enforce it, that makes his pen poisonous to the Constitution.


Past executive orders in the United States

Lincoln: Emancipation of slaves

In what he said was his most significant achievement, President Abraham Lincoln issued the Emancipation Proclamation on Jan 1, 1863. It proclaimed freedom for roughly three million African-American slaves but only applied to the breakaway Confederate states: "I never, in my life, felt more certain that I was doing right, than I do in signing this paper," said Mr. Lincoln, who defended the executive action as a limited but "fit and necessary war measure" intended to cripple the Confederacy by denying it the labour of slaves.

Lincoln: Suspension of habeas corpus

Ten days after Virginia seceded from the United States, Lincoln issued an executive order suspending habeas corpus – essentially authorizing the military to arrest and hold anyone indefinitely without showing cause. The President relied on the so-called suspension clause of the Constitution, which explicitly allows for habeas corpus to be suspended during times of war or insurrection.

Roosevelt: Internment of Japanese-Americans

In the most infamous use of executive order and one ruled constitutional by the Supreme Court, President Franklin Roosevelt authorized the detention and forced relocation to concentration (his word) camps of more than 120,000 Americans of Japanese ancestry. Although small numbers of German-Americans and Italian-Americans were also detained, it was Japanese-Americans, including more than 70,000 citizens, who suffered most. Congress passed legislation backing the President and the Supreme Court confirmed the President was acting within constitutional authority. In a stinging dissent, Justice Frank Murphy said the order "falls into the ugly abyss of racism," akin to "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies," of Nazi Germany and Imperial Japan "which this nation is now pledged to destroy."

Truman: Seizing the steel industry

Claiming a national emergency during the Korean War, President Harry Truman seized 71 U.S. steel companies – the entire industry – which were locked in a bitter labour dispute. The President invited Congress to back him. It didn't. The companies fought back, claiming Mr. Truman had overreached. In a landmark 6-3 decision, the Supreme Court agreed, with the majority making clear the Constitution gave the President the right to execute the laws, not the option to write them. "In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."

Johnson: Outlawing discrimination in hiring

In 1965, barely two years after Martin Luther King's "I Have a Dream speech," President Lyndon Johnson outlawed discrimination on the basis of race, colour, religion or national origin among all organizations and companies doing business with the federal government. It was the most sweeping directive giving force to the civil-rights movement and the basis for requiring contractors to take affirmative action to promote equal opportunity for minorities.

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