By Scott Coffina
Wednesday, January 16, 2013
The horrific recent mass murder of 26 children and adults
at Sandy Hook Elementary School predictably has reignited the gun-control
debate in this country. Over the past month, the Obama administration has
focused primarily on guns in its initial response to the Newtown shooting. The
task force led by Vice President Joe Biden has met mostly with groups either in
favor of or opposed to greater restrictions on guns and ammunition. Facing
strong political opposition in Congress from both parties, Vice President Biden
and President Barack Obama each have suggested publicly that the president will
act by executive order to restrict guns.
This trial balloon for unilateral action by the president
raises the question, “Can he do that?” The answer is, it depends how far he
tries to go.
Executive orders are not constitutionally sanctioned or
prohibited, but once signed, they have the force of law. Presidents have
utilized them to drive policy within the executive branch since the dawn of the
republic. In some cases, presidents have acted quite aggressively through
executive orders. President Lincoln suspended the writ of habeas corpus during
the Civil War; President Roosevelt established internment camps during World
War II; and President Truman mandated equal treatment of all members of the
armed forces — all through executive orders. Significantly, all three of these
actions were rooted in the president’s constitutional authority as
commander-in-chief of the armed forces, in the midst of national emergencies.
Presidents acting by executive order have been challenged
in court, most notably in Youngstown Sheet & Tube Co. v. Sawyer (1952). In
Youngstown Sheet & Tube, the Court held that President Truman had exceeded
his authority by directing the seizure of steel mills to avert a strike during
the Korean War, stating that “the president’s power to see that laws are
faithfully executed refutes the idea that he is to be a lawmaker.” Thus, the
majority found that Truman had strayed too far into the province of the legislature,
violating the separation-of-powers doctrine.
But it was Justice Robert Jackson’s concurrence that
established the three-part framework for considering executive authority going
forward. First, there are the areas of express or implied constitutional or
statutory presidential authority, where the president’s authority for executive
action is at its height. Second, there are areas where Congress has not
legislated, and where the line of authority between the president and the
Congress is vague or overlapping. Finally, there are areas where presidential
action is “incompatible with the express or implied will of Congress,” where
the president’s authority is at its lowest.
The analytical framework for executive action established
by Justice Jackson thus provides a basis to consider how executive action by
President Obama to restrict guns would fare in a legal challenge.
It is unlikely that the president would move to
confiscate or prohibit handguns through executive action, or even through
legislation, for that matter. The Second Amendment is alive and well. The U.S.
Supreme Court has reaffirmed the right of individuals to possess firearms for
self-defense and other traditionally lawful purposes twice in the past five
years. And to be clear, President Obama has never suggested he would pursue
this course of action.
On the other end of the spectrum, pursuant to his constitutional
mandate to “take Care that the Laws be faithfully executed,” the president
clearly has the authority to direct the Department of Justice to prioritize
more comprehensive enforcement of the gun laws already on the books or to
enhance tracking of the paperwork related to the sale and registration of guns.
Presidents George H. W. Bush and Bill Clinton actually implemented gun-control
measures by executive orders pursuant to this authority, banning the
importation of certain assault weapons under existing gun-control laws.
The key question is how much President Obama might try to
accomplish by executive action in the gray areas. It is possible that he can
make background checks for gun buyers mandated by the Brady Bill more effective
and efficient and also facilitate better sharing of mental-health information
(if he is willing to take on the ACLU in doing so) by executive action.
However, if he goes further and attempts to ban assault weapons or
high-capacity ammunition magazines unilaterally, he will be on shaky legal
ground. Although the Heller Court stated that the right to possess a firearm
does not include the right to possess any kind of weapon for any purpose, it is
unclear whether a blanket ban on assault weapons and high-capacity magazines
(even if duly passed by Congress) would survive a Second Amendment challenge
(it may depend, in part, on how such weapons were defined).
Moreover, an executive order banning assault weapons
falls within the legislative authority of Congress, and thus implicates the
separation-of-powers doctrine. Indeed, Congress has acted in this area, passing
a ban on assault weapons and high-capacity magazines in 1994, and — equally
significant — also has chosen not to act since the ban expired in 2004. Should
the president attempt to supersede Congress’s clear legislative prerogative in
this area by executive order, one would expect the courts, under the rationale
of Youngstown Sheet & Tube, to strike his measure down.
As important, if the president decides to bypass the legislative
process and act unilaterally to limit guns, he will be courting a political
disaster. The NRA is not some fringe group of irrational gun nuts seeking to
take advantage of the Sandy Hook tragedy to drum up members and donations, as
the mainstream media and even the president have implied. Rather, it represents
the serious concerns of millions of law-abiding Americans, from both parties,
who value their Second Amendment right to gun ownership for self-defense,
sport, and protection against disorder or government tyranny, as the Framers
originally intended. The president once derisively talked about “bitter”
small-town residents’ “cling[ing] to guns or religion.” Well, nothing would
make people cling harder to their guns than an effort to ban them by executive
fiat. And the courts, most likely, would support them.
The Washington Post recently released a poll showing that
a small majority of Americans are more likely to support gun-control measures
in the wake of Newtown. If the president taps into that underlying support and
is able to approach the matter with a spirit of compromise — and as part of a
larger package that must also include serious proposals to better identify and
compassionately treat mentally ill individuals who might be prone to violence,
and efforts to have the entertainment industry tone down the indiscriminate
killing without consequence in video games, television, and movies — perhaps
Washington will surprise us and some reasonable gun-control measure could pass.
(Whether it would be effective or not is a different question.) Thus, the
president should not throw up his hands and conclude that a legislative effort
is too difficult to pursue. The political process really is the only way —
banning guns by executive order would be unnecessarily provocative and legally
unsustainable, and it may not even prevent the next Newtown, which, after all,
is supposed to be the goal.
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