Obama’s gun-violence executive orders and the Constitution

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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As soon as tomorrow, President Obama will announce his administration’s initial steps for dealing with gun violence. It is expected that he will propose measures for congressional action. But recognizing that most legislative proposals will attract powerful resistance, including from some in his own party, the president has indicated that he is prepared to act unilaterally. “My starting point is not to worry about the politics,” the president said. “My starting point is to focus on what makes sense, what works.”

Of course we should all want our president focused on what works. We have more than enough dysfunctional and counter-productive federal policies in place, thanks to both Congress and the president. But there is one consideration that is even more important than whether an executive action will work to reduce gun-related violence: whether the president has the constitutional authority to implement it.

The obvious constraint on executive actions relating to guns is the Second Amendment. It is a constraint that applies equally to Congress and to state and local governments. Though the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller made clear that the Second Amendment protects an individual right to bear arms, it left unresolved whether particular regulations on gun ownership and gun use are consistent with that right. Both the president and Congress will get an earful on this topic over the coming weeks and months.

But the president does not necessarily have authority to take whatever actions pass muster under the Second Amendment. Absent congressional collaboration with the president on constitutionally enacted legislation, the president is limited to whatever authority he already has under existing laws or pursuant to powers granted directly by the Constitution.

Either way, any executive action on gun violence would come through an executive order. By announcing his intention to bypass Congress, President Obama has alerted us to the possibility, if not likelihood, that he intends to act without regard for the constitutional limits on executive authority. As Senator Rand Paul (R-KY) told CBN News, “I think having a monarch is what we fought the American Revolution over and someone who wants to bypass the Constitution, bypass Congress — that’s someone who wants to act like a king or a monarch.”

Every president since George Washington has used executive orders in exercising the “executive Power” granted in Article II, Section 1 and in “tak[ing] Care that the Laws be faithfully executed” as required in Section 3 of the same article. Lincoln suspended the writ of habeas corpus and emancipated the slaves by executive order. FDR interred 120,000 Japanese-Americans and launched the New Deal by executive order. Truman took over the nation’s steel mills, Eisenhower desegregated the schools, Kennedy and Johnson barred racial discrimination in federal housing and Reagan forbid the use of federal funds to advocate for abortion, all by executive order.

Only twice in the nation’s history has an executive order been invalidated by the courts (Truman’s seizure of the steel mills and a Clinton order forbidding federal contracts with organizations with strike-breakers on the payroll). Up until 1983, Congress asserted authority to independently veto executive orders, but in Immigration and Naturalization Service v. Chadha the Supreme Court held that legislation purporting to overturn an executive order must be presented to the president for his signature like all other legislation. Given the two-thirds vote of both houses necessary to override an almost certain presidential veto, it is now nearly impossible for Congress to repeal an executive order.

With the courts apparently unwilling and Congress unable to block executive orders, we’re left with self-restraint on the part of the president or the ballot box as the only controls on the abuse of executive authority through the use of executive orders. This president has made it clear that, because he won the election, he will do whatever it takes to achieve what he knows to be best for the American people. Before his re-election, Obama would have been more interested in the ballot box; indeed it would have been his “starting point.” But as a second-term president, he can act like a king with only history to judge him. All too often it seems that Obama wouldn’t mind if history judges him to be the best king we’ve ever had.

Like Senator Paul, “I’m against having a king.” Unless Congress gets serious about defending its constitutional turf (by taking the bull by the horns and enacting legislation that effectively preempts any executive orders, rather than engaging in partisan warfare), we could be in for four years of ever more imperial presidential rule. As Justice Felix Frankfurter wrote in Youngstown Sheet and Tube v. Sawyer (the steel seizure case): “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.