Use your vetoes. Photographer: J.H. Owen-Pool/Getty Images
Use your vetoes. Photographer: J.H. Owen-Pool/Getty Images

In making the prisoner swap to free Sergeant Bowe Bergdahl, President Barack Obama had to deal with a provision found in the 2014 Defense Authorization Act which requires 30 days notice to Congress before transferring a detainee from Guantanamo. Obama objected to this provision in a signing statement when he approved the law. I don't know to what extent he stayed within the law, justifiably skirted it or flat-out disregarded the measure in exchanging five detainees for Bergdahl. (For more on that, see reasonable arguments from Marty Lederman and Jack Goldsmith.)
But Obama had a better tool than a signing statement with which to handle his opposition.

Presidents should get back into the habit of vetoing.

Did Obama want to avoid a big public fight about Guantanamo? Tough luck. If he thought that the regulations Congress was saddling him with were ill-advised or even unconstitutional, he should have exercised his veto power and insisted on something better. Yes, the annual Defense Authorization bill is must-pass (and eventually must-sign). That doesn't mean that presidents lose all their bargaining power. It’s certainly possible Obama could have obtained a better-drafted version of what Congress passed, even if he still disagreed with the main thrust of the restrictions.

Granted, a lot of this has to do with the ways Congress circumvents its own dysfunction, often by passing omnibus bills at the last minute. Presidents can’t change that; indeed, they often encourage it on the (correct) basis that a last-minute, sloppily drafted and log-rolled bill with extraneous provisions is better than no bill at all.

The flip side to this is that Congress can and should defend itself -- by passing clarifying legislation -- when presidents interpret laws contrary to their original intent. That’s not always easy when the original provision was controversial. But the bigger problem is that both parties would have to put aside partisanship and act on behalf of their institution -- something that has become increasingly rare.

Since at least Ronald Reagan, presidents have almost always preferred to sign-and-ignore or sign-and-complain rather than veto when they agreed with the overall bill but disagreed with relatively minor provisions. But a president who used the veto a little more aggressively might really change what Congress sent him on the next bill. Meanwhile, presidents should be willing to absorb the risk of short-term bad publicity; most people aren't paying attention, and the rest will soon forget.

FDR supposedly told his staff to, as historian William E. Leuchtenburg puts it, “look out for a piece of legislation he could veto, in order to remind Congress that it was being watched.” Signing statements don’t do that.

To contact the writer of this article: Jonathan Bernstein at jbernstein62@bloomberg.net.

To contact the editor responsible for this article: Zara Kessler at zkessler@bloomberg.net.