The debate over the 2nd amendment picked up again this week with insinuations (by Vice President Biden no less) that the President of the United States (POTUS) might implement some new gun control measures through unilateral executive orders. This has sent many gun right activists into a frenzy about unconstitutional overreach by the executive branch of government. Can a president take such unilateral action on such important matters? That is a very complicated constitutional issue.
I hope most American citizens are familiar with the concept of checks and balances among our three branches of government. As a quick recap, the US Constitution sets forth how the founding fathers intended for the federal government to operate. In order to avoid a monarchy type of government they divided the powers among different branches of government to ensure that too much power would never reside with one person or branch.
Originally, the power was vested in the legislative branch (Congress consisting of the House of Representatives and the Senate) and the executive which includes the POTUS and his cabinet. The Congress had the power to debate the needs of the people and create laws necessary for their general welfare. The POTUS had the power to pass or veto the laws presented to him by Congress but Congress retained the ability to override a veto with a 2/3 majority of both houses. The president was then supposed to uphold his oath of supporting and defending the constitution by implementing and enforcing the laws. In such a way neither Congress nor the POTUS could wrench control from the other.
A few years after the Constitution’s adoption, a slight evolution of the founder’s original intent (think judicial power grab) gave the US Supreme Court (SCOTUS) a power to review laws and acts to determine their constitutionality. This development created the idea that most school children are taught today about the three equal branches of government that check each others power.
Don’t kid yourself that the elementary school model government exists in an idyllic peaceful state. There is an inherent tug of war going on between the branches (think of a friendship between three passive aggressive people.) Each branch fights to gain or retain power. The power struggle usually is a quiet cold war but every so often events happen that change the dynamic. Law textbooks are full of such battles.
Perhaps the most important is Youngstown Sheet and Tube Co. v. Sawyer, a case where President Truman attempted to seize a steel mill having labor troubles. He argued the act was necessary for national security during the Korean War because the mill was producing war material. The SCOTUS decision, and especially Justice Jackson’s concurring opinion, created the test the court uses to determine if the POTUS is exercising his power within the limits prescribed by the Constitution.
Justice Jackson’s concurring (meaning in agreement with the majority opinion, but slightly different) opinion set three positions for analyzing the powers of the POTUS. When the POTUS was enforcing a position that Congress had authorized or delegated then the executive power was at its most constitutional. When the POTUS was acting where Congress had been silent on the issue the executive’s constitutionality was diminished, but could be evaluated based on the circumstances. When POTUS was acting on his own powers against the wishes of Congress his power was at its minimum and his orders were suspect.
In other words, the POTUS does not operate in a vacuum. His power is dependent upon Congress in many cases. (By the way, Truman was found to have acted unconstitutionally when he seized the steel mill.)
So how does an Executive Order (EO) work? Well, the President determines that an issue is so time critical that it can not wait for the bicameral (meaning both houses of congress agree to pass a bill) process. This is OK assuming that Congress has not yet addressed the issue and it may in the future using the proper legislative process. The problem occurs when the POTUS decides to use an Executive Order to bypass Congress.
So far there have been over 13,000 Executive Orders signed since the inception of the idea. SCOTUS has invalidated some as unconstitutional, such as Truman’s Youngstown order. Others have withstood constitutional scrutiny or have never been challenged in court. President Obama has created Executive Orders as innocuous as closing of executive departments on Monday December 24, 2012 (EO 13633) to ones that may implement martial law with the National Defense Resource Preparedness Order (EO 13603).
Side Bar – Not to sound like a paranoid conspiracy theorist but could someone please explain to me why the Department of Defense takes command of all water resources during a national emergency? I understand and agree with all “food resources” being controlled by the Department of Agriculture but water resources to defense? I think I will start storing a few jugs of water.
In addition to Executive Orders, the POTUS can just issue new policy directives to agencies controlled by the executive. President Obama did this when he created a path to work visas and a ban on deportation on illegal aliens brought here as children. He did this despite the fact Congress had just failed to pass the “Dream Act” which pretty much would have done the same thing (suspect under Justice Jackson’s Youngstown opinion). Another Obama example is the decision for the Justice Department to no longer defend against court challenges of the Federal Defense of Marriage Act (DOMA), a duly enacted law that a president is supposed to defend. (Again Justice Jackson?)
I’m not just picking on President Obama here. President George W. Bush got in trouble for some unconstitutional executive acts such as creating military tribunals for terrorist detainees. All presidents use these techniques to further their policy objectives. The million dollar question is: should they?
The current political reality is that Congress is divided between Republicans and Democrats. In its divided state, meaningful gun control legislation is unlikely. President Obama knows this so pundits are suspicious that he may act unilaterally to create gun control rules to be enforced by the Alcohol, Tobacco and Firearms (ATF) agency (a branch of the federal government under executive control.)
Or Obama could boldly reinstitute the 1994 Assault Weapons Ban. I bet he could even argue that Justice Jackson might support him since Congress had passed it once and it only expired because the legislation had a sunset date of 2004. (I don’t agree with this, as Congress knew it was going to expire and did nothing to enact new legislation, implying that it no longer supported it.)
Either way, constitutional lawyers are likely to be salivating waiting to argue the Pros and Cons of Justice Jackson’s nearly 60-year-old opinion. Remarkable how history repeats itself isn’t it?
I leave you with a quote from the father of the Consitution, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” James Madison, Federalist Papers #47, 1787