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On My Own

- January 18, 2013

Presidents – in Washington, as well as Paris – do like to act on their own.  As today’s New England edition of the New York Times trumpeted, “Obama Vows Broad Campaign to Fight Gun Violence, Issues Executive Orders Bolstering Existing Laws.”

That headline suggests two observations about a hot topic this week: presidential unilateralism. (A.k.a., “an existential threat to this nation.”)

First, “executive order” is a term applied as shorthand to a variety of administrative directives by the president, but it is actually a specific and codified type of such directives. Indeed, the 23 things listed in the White House document (here) laying out the president’s gun control agenda are not executive orders. Presidents have other means of seeking to direct and govern actions by government officials, and executive orders (because they require various levels of review) are not always the most flexible or quickest choice.

Of the 23 actions on the Obama agenda, at least three deal with new or revised regulations (a process housed in the agencies). Two more require executive departments to publish letters or issue reports. One is a nomination (of an ATF director.) One is, at best, hugely vague (“maximize enforcement efforts to prevent gun violence”). Three others, according to the White House website, are presidential memoranda — less formal and not always as well cataloged as executive orders; three or four more look like they could be done via memorandum as well, or via even less formal communication with the department involved.

In fact, exactly zero new executive orders are posted on the White House site as of this writing (Thursday evening.)  Which is perhaps why the (presumably printed later) city edition of the Times amends the earlier subhead by correctly noting “executive steps ordered” instead.

Second: As this accounting implies, what is notable about these particular directives is how constrained they are. Some members of Congress, not wanting to waste perfectly good press releases, denounced them anyway. The implication of the present announcement is that the legislative framework of gun control is (a) limited and (b) not particularly rife with presidential discretion.

Obviously this is not true everywhere. The President has certainly been encouraged – mostly by Democratic members of Congress (see here and here) and columnists – to utilize a gaping loophole in a prior statute to issue the now-infamous trillion-dollar platinum coin. He has also been urged to interpret the 14th amendment in a manner that would give him power to ignore the statutory debt limit. That he has thus far demurred from each approach is to his credit, in my view, but certainly both cases provide the textual ambiguity so useful to expanding presidential authority.

In other cases, add a large dollop of secrecy as well. The Obama administration has stressed that its administration of the war on terror is (in contrast to President Bush) grounded in specific legal authority – notably the 2001 Authorization for the Use of Military Force, and the laws of war. But as Vicki Divoll’s powerful op-ed suggests, how that authority applies to the targeting practices for drones generally – and for those that are intended to kill American citizens in particular – is simply not known. Perhaps congressional outrage might be more productively transferred from protecting the 2nd amendment to protecting the 5th…