HERE WE GO AGAIN: White House Not Sure if Closing GITMO With Executive Order is Constitutional, Hints Obama Might Do It Anyway.

Congress has repeatedly prohibited the transfer of Gitmo prisoners into the U.S., including most recently in the 2015 National Defense Authorization Act.  But as the Wall Street Journal editorial board put it last week:

Mr. Obama’s inability to negotiate honestly with the legislature is a hallmark of his Presidency. More damaging is the precedent he is setting by making major policy changes with no more than a wave of his executive hand. Press reports note that Administration lawyers are working on legal justifications for the Gitmo order. Decision first, the law later.

The 2016 NDAA recently passed by Congress would have extended the anti-transfer prohibition, which is likely one reason why President Obama vetoed the bill on October 22.  It is unlikely that there are sufficient votes in Congress to override the President’s veto (which requires a 2/3 supermajority of both houses of Congress). Consequently, the House leadership has indicated that it plans to markup an entirely new NDAA rather than attempt to override the veto.  Media reports suggest that GOP leadership does not anticipate that the President would veto this revised NDAA

If Congress cannot managed to pass a new NDAA or otherwise statutorily extend the anti-transfer provisions, President Obama’s legal position is strengthened considerably, as any transfer of Gitmo prisoners would no longer be contrary to law.