Point of View

Parsing the constitutional questions of President Obama’s Taliban trade

June 7, 2014 

The political fallout continues to grow from revelations that President Obama might have overstepped his constitutional powers as the nation’s commander in chief in securing the release of Sgt. Bowe Bergdahl, the last known American prisoner of war in Afghanistan, in exchange for the freedom of five Taliban inmates held at Guantánamo Bay.

The administration has argued that the transfer of the detainees and the possibility of Bergdahl’s rescue combined to form a “unique set of circumstances” that demanded quick action on the part of the president to bring Bergdahl home. Many Republicans, however, have criticized the Obama administration for breaking the law in failing to notify Congress before the detainees were moved.

Much of the debate involves longstanding questions concerning the uncertain powers of the nation’s chief executive. President Obama, like many of his predecessors, has been charged with enlarging the powers of his office beyond the limits imposed by the Constitution.

In fact, the broader controversy concerning the administration’s actions dates back to the earliest years of the republic. In a Supreme Course case familiar to many schoolchildren – Marbury v. Madison (1803) – Chief Justice John Marshall was confronted with a question similar to the one raised by political pundits today: How far does executive prerogative extend? The case involved the Jefferson administration’s refusal to confirm the appointments of a number of judicial nominees whose signed commissions remained undelivered by new secretary-of-state James Madison after Thomas Jefferson took the oath of office. William Marbury was one of the dispossessed, and his attorneys persuasively argued that the commissions represented rights that the courts were obliged to protect. For his part, Jefferson believed that revising the commissions was a valid exercise of executive prerogative.

The court ultimately dismissed the case on jurisdictional grounds, but not before it recognized the legitimate wrong incurred by Marbury and lectured Jefferson on the rule of law. Writing on behalf of a unanimous court, Marshall stipulated that the president and his Cabinet possessed robust discretion with regard to “political questions,” which included, notably, foreign affairs. However, the opinion continued, the chief executive and his officials were legally accountable for the performance of duties assigned by law that affected “the absolute rights of individuals,” to wit, Marbury.

Thus, the court argued that executive officials were sometimes political agents whose actions were beyond the court’s meddling, while in other instances public ministers who were accountable to the American people. Marshall added that it would be the Supreme Court’s responsibility to determine the ambiguous line where the legitimate discretionary powers of the executive branch ended and the duty to obey the laws of the nation began. Over the course of subsequent presidencies – from the Watergate tapes to Guantánamo Bay tribunals – the Supreme Court has done just that.


While reading Marshall’s opinion in Marbury is helpful for contextualizing the unfolding constitutional questions concerning the Bergdahl drama, Marshall’s words also convey important reminders that should today chasten those on either side of the political aisle.

First, the case reminds us that the president is, according to the Supreme Court, granted extraordinary discretion with regard to his administration’s decisions. Disagreements with the distinction drawn by the court must also take into account that many of the Constitution’s framers supported a robust executive branch, particularly in light of the weaknesses of the Articles of Confederation. After all, as Alexander Hamilton notes in The Federalist, the exigencies of any nation’s affairs cried out for an individual empowered to act with “energy” and “dispatch” on behalf of the republic.

Second, Marshall’s words recall to our attention that the judiciary – the guardian of the Constitution, supposedly – is the proper arbiter of the boundaries of executive discretion, not the president and his own counsel. The legal legitimacy of the administration’s actions rests with the judicial branch, not in comparisons made by Secretary Hillary Clinton and other administration supporters to similar prisoner-soldier exchanges carried out by other nations.

The final lesson we gather from Marshall’s opinion is one of an enduring tension, encountered not just by elected officials, between obedience to the letter of the law and doing what is most expedient or pragmatic given the circumstances. Just as the Founders struggled in striking a balance between principle and flexibility, so too do we continue to debate their priority. To paraphrase Marshall’s most celebrated line from the court’s opinion in Marbury: Are we still a nation of laws and not men?

Clyde Ray is a doctoral candidate in the Department of Political Science at UNC-Chapel Hill.

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