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Is Obama’s executive action on gun control a step toward a ‘New Imperial Presidency?’

- January 6, 2016

On the face of it, President Obama’s 10-point package of administrative moves to deal with gun violence would seem to be a perfect example of unilateral action as a substitute for legislation. Certainly his opponents charged him with undermining the rule of law. “Pretty soon,” Donald Trump warns, “you won’t be able to get guns.”

And in his emotional remarks on Tuesday afternoon, Obama seemed to endorse that view. “Until we have a Congress that’s in line with the majority of Americans,” he said, “there are actions within my legal authority that we can take to help reduce gun violence and save more lives.”

Yet this week’s actions also seem to be in line with the use of orders as complements to congressional action – and as such, far less aggressive than his critics charge (or his supporters applaud).

For one thing – although Jeb Bush tweeted that “I’ll repeal his executive orders and protect 2nd amend” – the package announced Tuesday doesn’t contain a single executive order. (Perhaps Bush knows this and is cleverly hiding his support for enhanced background checks. Or perhaps instead his campaign struggles because he doesn’t read The Monkey Cage — if he did, he would be well acquainted with our longstanding efforts to differentiate between executive orders and other unilateral and administrative tools presidents can use.)

Instead, the moves are made up of about half departmental action and half exhortations to enforce existing law. Some seem to be repackaged from 2013. For instance, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) announced a rule that prevents someone from evading background checks by transferring a gun to a trust or corporation — a rule that was originally announced in August 2013. Others reorganize what the government is already doing, for instance, creating an Internet Investigation Center within ATF.

On the pep-talk side of things, Attorney General Loretta E. Lynch will urge U.S. attorneys to tune into “smart and effective enforcement of our gun laws” and state attorneys general to make sure national databases have the records they need for accurate background checks.

The president himself, in an executive memorandum to the Departments of Justice, Defense and Homeland Security titled “Promoting Smart Gun Technology,” winds up simply asking the departments to study that technology’s potential to prevent the unauthorized use of firearms.

The memorandum is full of language limiting it “to the extent practicable and permitted by law,” “consistent with existing law” and the like. And although it’s true that the administration’s attorneys have been pretty generous in deciding that presidential preferences just happen to be “consistent with existing law,” in both domestic and foreign policy, the memorandum does not push very hard to use governmental buying power to encourage the development of “smart guns.”

One item in the package does use departmental action to carry out an existing statute in a new way, closer to the president’s policy preferences. This is the guidance document released by ATF that seeks to “clarify” — which is to say, broaden — the vague statutory definition of those “engaged in the business of dealing in firearms,” and thus increase the number of gun sellers required to have federal licenses and to conduct background checks of potential gun buyers. The argument is that some merchants are avoiding the need to conduct such checks by claiming to be making private sales, perhaps on the Internet or at gun shows. The ATF guidance hopes to close this loophole.

But the ATF’s document is as carefully vague as the statute it seeks to interpret. It does not say how many guns someone has to sell to require a federal license; instead, it stresses the “specific facts and circumstances” of each application. This may make it harder for the inevitable court cases to do more than overturn the ATF’s decision in a given case, rather than the entirety of the new guideline.

Yet that is the largest unilateral change here. The not-very-small print to this supposed package of unilateral executive action shows that the most substantive shifts Obama is proposing require legislative approval. Five hundred million new dollars for mental and behavioral health programs. Two hundred thirty new FBI “examiners and other staff.” Two hundred new ATF agents and investigators. In short, budget amendments.

In the past, presidents have used executive actions to prod Congress to act — they change the status quo and dare Congress to change it back, or use their actions as bargaining chips. For instance, the Carter administration set aside millions of acres of conservation land in Alaska in 1980 as a way to blackmail Congress to pass legislation that set aside less — but an amount still acceptable to Carter. In these cases, if Congress doesn’t act, the president wins. If it does, he might still win.

But unless this package (or Obama’s speech) galvanizes public support in a way that makes pro-gun lawmakers worried for their political lives, this package of small changes seems unlikely to prompt any legislative action. In its quiet moderation, it seems mainly to be a rhetorical prod.

It puts Congress’s unwillingness to act clearly on display. But in so doing, it highlights how little unilateral authority over gun violence the American president actually has.