President Barack Obama cannot have it both ways no matter how frustrated he is with a deadlocked Congress that fails to act on most anything. He complains that congressional Republicans refuse to work with him, yet he fails to consult with them even when the law requires it. The president's understandable impatience with a dysfunctional Congress does not trump his legal obligations, and he has to engage congressional leaders even when it is inconvenient.
Congress' investigative arm, the Government Accountability Office, rightly faulted the Obama administration last week for crossing the line. In unusually direct language, the GAO said the Defense Department broke the law by failing to give advance notice to Congress of the May swap of five Taliban prisoners being held at the U.S. military prison at Guantanamo Bay in exchange for the Taliban's release of an American prisoner, Army Sgt. Bowe Bergdahl.
The GAO found that the law was "clear and unambiguous." The 2014 statute requires the administration to notify relevant congressional committees at least 30 days before the transfer or release of any prisoner from Guantanamo. The Defense Department notified Congress on May 31, the same day as the transfer. And for good measure, the GAO noted, the department violated a second law by using funds for the release that were not legally appropriated.
The explanation from the White House was weak and self-serving — and beside the point. It exposed the hypocrisy of an administration that was quick to dismiss the congressional role in bringing this solider back but has been all over the map on the need for Congress' approval before American forces are sent into harm's way.
Obama has made clear he will use his executive authority in the remainder of his term to move forward on immigration, climate change and other issues that are hopelessly stalled in Congress. He has some room on those fronts to chart a more sensible approach to deportations, border security and global warming, even if the more durable route is to keep working with Congress on a legal and binding response to these pressing national challenges.
But there is a difference between Obama being practical about policies that won't pass and choosy about ones that are already law. It is one thing for the administration this week to work around Congress' failure to pass climate change legislation by seeking a voluntary accord instead on global greenhouse gas emissions. But it is another for the administration to seriously consider ramping up its month-old military campaign against Sunni militants in Iraq and Syria without congressional approval. Lacking the firepower to control global warming raises far fewer immediate implications for the United States than turning additional firepower on a growing jihadi force that threatens the security of two sovereign Mideast states.
The White House has practical reasons for having Congress take some responsibility for the messy range of risky options in Iraq and Syria. But a nation of laws cannot stand by while its chief executive uses a wartime footing to avoid the legal checks and balances that distinguish its democratic system. Congress needs to debate the use of force and join the president in making the case to the public. These are not minor matters to leave to the auditors.