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In a recent Post op-ed, Gregory B. Craig, former White House counsel, and Cliff Sloan, former special envoy for Guantanamo closure, argued that President Obama has the legal authority to ignore the law and transfer some of the world’s most dangerous terrorists to the United States.

I sincerely hope that, as former Obama administration officials, they are not laying the groundwork for a course of conduct from the White House that can end only in constitutional crisis. In a recent letter, I respectfully requested that the president reject Craig and Sloan’s legal reasoning and assure Congress that he will not transfer detainees from the military prison at Guantanamo Bay, Cuba, to the United States in violation of the law.

The Constitution gives Congress the power to declare war but reserves to the president, as commander in chief, the ability to “make war.” This led Craig and Sloan to conclude that Congress cannot “direct specific facilities in which specific detainees must be held.”

Stated this broadly, I agree. But in framing the question as “whether Congress can tell the president where military detainees must be held,” they grossly mischaracterized the issue.

Congress has not required that any individual detainee be held in a specific facility. Rather, it prohibited the use of federal funds to move detainees from Guantanamo to the United States. This is not a de facto mandate that the president maintain the detention facility at Guantanamo Bay, as Craig and Sloan seemed to assume. It is a legitimate exercise of congressional power to prevent the president from housing some of the world’s most dangerous terrorists on U.S. soil. This, emphatically, Congress can do.

The Constitution’s separation of powers is also a balance of powers. While the president has broad powers as commander in chief, Congress has equally broad authority in its power of the purse and its exclusive grant of legislative powers. The Constitution gives Congress authority to “make all Laws necessary and proper for carrying into Execution the . . . Powers vested by this Constitution in the Government of the United States.” In other words, Congress makes the rules, and the president executes them. Relative to detainees, the Constitution even gives Congress the explicit power to “make Rules concerning Captures on Land and Water.” Congress has done exactly that.

In banning transfers of dangerous terrorists into the United States, Congress is exercising a legitimate legislative function. We saw with the June escape of dangerous criminals in upstate New York that it is impossible to guarantee Guantanamo Bay detainees will remain confined. Congress has the right to legislate to protect against this risk and to protect the emotional security of Americans who may feel justifiably concerned about living in close proximity to enemy combatants responsible for the deadliest attack on the United States since Pearl Harbor.

Moreover, in United States v. Verdugo-Urquidez, the Supreme Court held that the Constitution does not protect noncitizens outside our country. If the president were to unilaterally move alien terrorists into the United States, those terrorists could argue for constitutional protections. Congress has the right to protect against this possibility, especially because Congress, not the president, has the authority to determine how and when the domestic criminal laws should be applied.

Craig and Sloan wrote that Congress can pass military regulations, authorize detentions and military tribunals and broadly regulate the treatment of prisoners of war. But for some reason they emphatically denied that it can prevent known terrorists from being transferred to U.S. soil.

In so arguing, they did not mention Youngstown Sheet & Tube Co. v. Sawyer — the seminal Supreme Court decision on the relative powers of the executive and legislative branches of government.

In Youngstown, a labor dispute led to a strike that threatened to close the nation’s steel mills in the midst of the Korean War. President Harry S. Truman believed this would cripple the war effort and ordered that the U.S. government take control of the nation’s steel mills to prevent their closure. In passing the Taft-Hartley Act, however, Congress specifically considered and rejected an amendment that would authorize government seizures in cases of emergency.

Truman’s order was in direct contravention of congressional will, but he argued it was justified because it was necessary to avoid national catastrophe in a time of war. The Supreme Court disagreed.

In a concurrence that has become a foundation of constitutional law, Justice Robert H. Jackson described executive authority as ebbing and flowing in conjunction with congressional will. When the president acts with congressional authority, this power is “at its maximum.” When the president acts in the absence of either a congressional grant or denial of authority, there is a “zone of twilight” where Congress may have concurrent authority. When the president acts against the express will of Congress, however, his power is at its “lowest ebb.”

Jackson presciently warned of the danger of allowing the president to ignore Congress: “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

With these stakes, and against this precedent, Craig and Sloan concluded that the president can and should ignore the expressed will of Congress and transfer the Guantanamo Bay detainees to the United States. I disagree. Hopefully, as a constitutional scholar, President Obama does as well.
 
View the op-ed online here.
Next month, President Obama heads to Paris for the United Nations Climate Change Conference, and he isn’t going empty-handed. In coordination with Environmental Protection Agency (EPA) Administrator Gina McCarthy, the President has created his Clean Power Plan, a dangerous and costly climate change initiative that would leave America at an international economic disadvantage for little environmental gain. As the conference gets closer, here are three things to remember about the President’s Clean Power Plan: 

1. Similar legislation could not pass in 2009
In 2009, President Obama was riding a wave of popularity and turned his focus from his campaign victory to the legislative wish list given to him by liberal lobbyists and the radical base of the Democratic Party. A top priority was climate change, but despite his personal popularity, overwhelming democratic majorities in both chambers, and help from then Senate Majority Leader Harry Reid and then Speaker of the House Nancy Pelosi, he could not pass the American Clean Energy and Security Act, also known as the Waxman-Markey Bill. The failure of that bill was a severe example of just how disastrous the legislation was. 

2. The Clean Power Plan, and the President’s climate agreements, will put America at a disadvantage 
President Obama is intent on reaching stringent emissions agreements in Paris next month, but in his negotiations, it’s imperative that any agreement include equal commitments from other countries. If not, he will put America at a severe economic and technological disadvantage. Enacting stricter regulations for the U.S., while allowing competing nations to advance under lax emissions standards, would reduce incentives for American businesses to develop responsible environmental technologies. It would also give our competitors an economic edge on the international market while simultaneously killing American jobs. We saw this previously in his negotiations with China. Under that terrible agreement, China was allowed to continue increasing their emissions through 2030, while the U.S. agreed to cut emissions. 

3. The Clean Power Plan would increase energy prices for the American taxpayer 
Energy prices are guaranteed to increase under the Clean Power Plan, and the United States Chamber of Commerce estimates that the initiative will cost American taxpayers $51 billion. That means much higher energy prices for the people of Southeastern Wisconsin. When you consider that our national debt is already at a crippling $18 trillion, the President’s plan unnecessarily puts additional financial burdens on hardworking middle class families and businesses – burdens that have increasingly become too heavy to bear – burdens that hit Wisconsin families harder than most due to the state’s reliance on coal. 

President Obama’s Clean Power Plan is a bad deal for America. If we want to continue being an international leader while building our economy and protecting the hardworking taxpayers, it’s critical we oppose this failed policy and ensure the President cannot cause further damage to this country in his last months as Commander-in-Chief.

WASHINGTON, D.C. – Today, Congressman Sensenbrenner released the following statement regarding the alarming indications that UnitedHealth Group, the nation’s largest health insurer, may be opting out of the Obamacare exchanges:

Congressman Sensenbrenner: “UnitedHealth Group’s recent threats of leaving the Obamacare exchanges are not surprising, but they’re indicative of what we already knew –the Affordable Care Act is a disastrous policy that harms Americans. Increased deductibles, fewer options in healthcare providers, and a general lack of coverage are not only hurting American businesses, but also the most vulnerable in our society. This terrible initiative was doomed from its conception and should be completely repealed and replaced with a true, free-market system that would provide the first rate healthcare that our citizens need and deserve.”

 

WASHINGTON, D.C. – Today, Congressman Sensenbrenner released the following statement on H.R. 4038, the American Security Against Foreign Enemies (SAFE) Act:

Congressman Sensenbrenner: “Protecting the safety of American citizens should not be a political issue. The American SAFE Act will temporarily halt the admission of Syrian and Iraqi refugees into the United States until the Obama Administration successfully creates a thorough vetting, identification, and monitoring process. America’s top security experts have voiced their concerns over the current system, which should make the President take pause. This country has always been a world leader in helping those in need, but we simply cannot take a casual approach to our own safety.”
 
WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner, along with dozens of bipartisan lawmakers, sent the following letter to President Obama urging him to temporarily halt the admission of Syrian and Iraqi refugees into the United States. 

Concerned lawmakers are urging the President to immediately halt the admission of refugees from Syria and Iraq into the United States until the Administration successfully creates a thorough vetting process that will identify all individuals who may pose a security threat, as well as contain an effective monitoring process for all refugees.


Dear Mr. President:

Our thoughts and prayers remain with victims of the November 13, 2015 terrorist attacks in Paris, and we support your efforts to assist the French people during their time of need.

Nonetheless, we cannot ignore that, despite your claims, the recent attacks in Paris and the suspected bombing of a Russian airliner, demonstrate that the threat of ISIS is not contained to Syria and Iraq.

Disturbingly, media reports indicate one terrorist killed during the Paris attacks may have arrived in Europe from Syria under the guise of a refugee. These events coincide with your Administration’s plan to raise the United States’ refugee ceiling in order to admit thousands of additional Syrians onto U.S. soil.

The United States has a proud tradition of opening its arms to those in need. However, the current conflict raging in the Middle East is unique and we cannot be certain that all individuals seeking refuge from the conflicts in Syria and Iraq pose no threat to Americans. Our first priority must be to protect our own citizens from harm.

Consequently, we urge you to immediately halt admissions of refugees from Syria and Iraq onto American soil. We ask that these admissions remain suspended until your Administration creates both a truly thorough vetting process to identify individuals who pose a security threat and an extensive monitoring process for all relocated refugees that ensures Americans are safe from potential threats. In order to meet this standard for effective security screening and monitoring, your Administration must first notify Congress of all policy changes, provide all information used to justify admission for each refugee to the House and Senate Intelligence, Judiciary, and Homeland Security Committees and satisfy the concerns of all Committees.

We urge your immediate action to suspend these admissions until effective vetting and monitoring processes are established that ensures the safety of the American people. We look forward to your timely response.

See full text here.
 
WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner sent a letter to National Aeronautics and Space Administrator Charles F. Bolden, as well as a letter to Inspector General Paul K. Martin seeking answers on NASA’s contracting practices.

After awarding a $1.3 billion contract to update the NASA Integrated Communications Service (NICS), NASA’s full and open competition requirements have been called into question. In his letters, Congressman Sensenbrenner calls on Administrator Bolden and Inspector General Martin to address all concerns regarding transparency in awarding Agency contracts. 

See full letter to Administrator Charles F. Bolden here.

See full letter to Inspector General Paul K. Martin here.

 
WASHINGTON, D.C. – On Monday, Assistant Attorney General Peter J. Kadzik sent a letter to the United States House Committee on the Judiciary in support of the Judicial Redress Act of 2015, bipartisan legislation introduced by Congressman Jim Sensenbrenner.

Kadzik notes that the Judicial Redress Act is “critical to ensuring continued strong law enforcement cooperation between the United States and the European Union,” and that the “diminishment of lawful information sharing options… would dramatically reduce cooperation and significantly hinder counterterrorism efforts, in addition to the prevention, detection, investigation, and prosecution of other criminal offenses.” 

Congressman Sensenbrenner: “We live in a time of unprecedented threats of violence, crime, and terrorism. Data and information sharing is a key component to combat these threats, as well as strengthen our international relationships and increase national and international security. The Judicial Redress Act is an important step forward in building trust and cooperation between nations, and with the support of the Justice Department, I’m confident this common sense, bipartisan legislation will be passed by my colleagues in the Senate.”

The Judicial Redress Act of 2015 (H.R. 1428) was passed in the House of Representatives on October 20, 2015 and referred to the Senate for consideration. The legislation would extend certain privacy protection rights to citizens of European countries, as well as other allied nations, if the federal government willfully discloses information in violation of the Privacy Act. Under the Judicial Redress Act, citizens of designated countries would be extended the core benefits of the Privacy Act, which already applies to Americans, with regard to information shared with U.S. law enforcement authorities, including the ability to bring a lawsuit for the intentional or willful disclosure of personal information.  Many countries already extend such protections to U.S. citizens. 
WASHINGTON, D.C. – Today, Congressman Jim Sensenbrenner released the following statement:

Congressman Sensenbrenner: “The tragedy and acts of terrorism recently perpetrated in Paris, France have inspired impassioned responses to our nation’s problems. However, these horrific actions are no excuse for the knee-jerk reactions, political platitudes, and fear mongering we’ve been experiencing from some of my colleagues in its aftermath. 

“The USA FREEDOM Act was carefully crafted to protect constitutional rights without risking national security. It was passed with the support of the NSA. Any claim that USA FREEDOM hindered the NSA is fear-mongering plain and simple. In fact, the bill’s changes were phased in over a 6 month grace period and haven’t even taken effect yet. This attack happened despite the government’s bulk collection of innocent Americans’ phone data. Once again, bulk collection is not the answer.”  
 
In 2009, President Obama turned his attention from his campaign victory to a carefully crafted legislative wish list, handed to him by liberal lobbyists and the radical base of the Democratic Party. Among their top priorities were extreme carbon-trading schemes and a war on fossil fuel. Despite the President’s personal popularity, his policy initiatives were met with strong opposition, forcing him to enlist the help of then Senate Majority Leader Harry Reid and then Speaker of the House Nancy Pelosi.
 
Democrats enjoyed sizeable majorities in the House and Senate, and the President was certain he could impose European-style cap-and-tax in America. The American Clean Energy and Security Act, also known as the Waxman-Markey Bill, was the cap-and-tax legislation Obama believed would secure him international accolades and a lasting legacy. But the deeply unpopular bill did not make it through the Democrat-controlled Congress, and he went to Copenhagen empty-handed.
 
Six years later, as he faces the 2015 United Nations Conference on Climate Change, Mr. Obama is again seeking legislation to tout internationally. But rather than going through a collaborative process with the states and Congress, he has enlisted the help of the Environmental Protection Agency (EPA) to ram through his new cap-and-tax initiative, the Clean Power Plan (CPP.)
 
Under CPP, the EPA feigns flexibility with rate-based and mass-based plans. If states can completely overhaul their energy policies and submit their compliance plans to the EPA by September 6, 2016, they will receive a rate-based plan. But that leaves states with less than one year to make major changes, and if they are unable to meet deadline, the EPA will implement its unnecessary mass-based cap-and-tax plan, which will be an economic disaster for the United States.
 
Energy prices are guaranteed to increase under the CPP, and the U.S. Chamber of Commerce estimates that the initiative will cost American taxpayers $51 billion. Taking into account our crippling $18 trillion national debt, hardworking taxpayers simply cannot afford to pay for another of President Obama’s liberal pet projects.
 
Further, CPP will diminish America’s natural gas industry through its Clean Energy Incentive Program. The program awards early action allowances for investments in wind and solar projects, and is a deceptive way to eliminate natural gas development, even though it is abundant in the United States, produces up to 45 percent less carbon dioxide than coal, and could provide millions of jobs and cleaner energy. 
 
The United States is already a world leader on alternative energy, reduced carbon emissions, and global social responsibility. Despite the fact that the European Union implemented a cap-and-tax plan similar to Obama’s CPP in 2005, the United States reduced emissions more rapidly between 2005 and 2012. Congress rejected cap-and-tax because it is bad policy, and the President shouldn’t implement it through executive fiat. 
 
The President is intent on reaching strict emissions agreements in Paris, and any agreement has to include equal commitments from other countries.  Considering his appalling track record on international negotiations, I’m concerned that any deal reached will punish the American economy and will not hold other countries accountable.  
 
President Obama’s agreement with China is a template for how he’s going to negotiate in Paris.  Under his terrible agreement, China agreed to continue increasing their emissions in 2030, while the U.S. cuts emissions.  It is clear that he is going to punish the American economy and let China off of the hook.
 
The CPP is a bad deal for America, and the President’s dogged pursuit of this weak policy is nothing more than a tireless pursuit to secure his liberal legacy through executive decision making. In these final months of his presidency, President Obama should set aside his selfish ambitions and finally do what’s best for America’s future. 

You can view this piece online here.