Earlier today, President Obama announced 23 highly anticipated executive orders in a highly publicized press conference on the issue of gun control. I was initially very worried about the contents of these orders, fearing he would bypass congress and simply legislate his will. For the most part, those fears were overblown: most of the executive orders operate within the spirit of existing legislation. Still, I’d like to assess each one individually from two perspectives. First, is it a good idea? Second, is it constitutional? Keep in mind that technically, I’d consider all of it unconstitutional, because it’s being done at the federal level and the federal government has no enumerated power to legislate such matters (don’t even try to bring that commerce clause argument). Gun control is a state issue. But that’s not the angle of constitutionality I’d most like to address here – I’m more interested in the constitutionality of Obama’s executive orders. Even presuming Congress were granted power to legislate on gun control, the president is not allowed to do it on his own. All Obama can do is enforce existing legislation, not make his own. Did he overstep his bounds in that manner too? Let’s find out (list of orders is taken from The Atlantic, in bold).
“Today, the President is announcing that he and the Administration will:
1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system. – No problem with this. It doesn’t seem like they’re collecting new data that wasn’t already being collected, but simply alerting federal agencies to make existing data ready for compilation in the event of federal
2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system. – I don’t really know what “address” entails, but I don’t like that the president decides which privacy measures in any law are “necessary” and which aren’t. Still, in the absence of more detail, I can’t pass judgment on this one.
3. Improve incentives for states to share information with the background check system. I don’t know what those incentives were or are now, but the only incentive I can think of that the federal government has over the state governments is withholding federal funds for the failure to comply. In which case that’s stupid, but already commonplace and hardly something new.
4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks. – Who counts as a dangerous person, and why does the Attorney General get to decide who counts instead of Congress? But once again, granting authority to review those categories is not the same as granting the authority to prohibit additional categories. A simple review seems harmless enough.
5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun. – I don’t like this one because it seems like just another inconvenient hassle to delay people getting back what they already own. But in the bigger picture I don’t think it will have much of an impact, and if the law says that all gun owners must be subject to a background check, I suppose “double checking” is legal.
6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers. – Offering guidance is not a use of power or force, so I have no problem with this one either.
7. Launch a national safe and responsible gun ownership campaign. – I think this one goes too far. National educational campaigns are not free, which means unless Congress has passed some law that I don’t know about granting funds for the purpose (perhaps in the ATF’s creation?), Obama just deciding that we need one is unconstitutional. Even if it is legal, it’s just silly, because national education campaigns on just about anything are rarely effective, and sometimes counterproductive.
8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission). – Again, “review” seems harmless. Action verbs are what we’re scared of here.
9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations. – Why do you need to trace them if they’ve already been recovered? Does the government resell the guns after confiscating them, or just give them back to the owner? I’m not sure how imp
10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement. – Releasing reports, analyzing information, blah blah blah. Honestly, who cares? All this stuff seems to be doing is making it possible for more restrictive measures to be implemented in the future. But those measures haven’t come yet, and they need Congressional approval to ever come, so I’m not too worried about a few repots.
11. Nominate an ATF director. – The Bureau of Alcohol, Tobacco and Firearms should not exist. But while it does exist, I don’t mind it having a director.
12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations. – Fine. School attendance shouldn’t be mandatory, but while it is, I’d rather force kids into a safe environment than an unsafe one. Once again, however, this should be done on the state level, because education is a local issue.
13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime. – Enforce the existing laws. Prosecute existing gun crimes. This is what the executive branch is supposed to do. No problems with this, legally.
14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence. – The Centers for Disease Control? What do they have to do with gun control? Perhaps they’ll be analyzing the impact of mental health, but even that I’d hesitate to call a “disease.” This same order could have been given to the Bureau of Alcohol, Tobacco and Firearms and it would have made more sense, but this just seems like executive overlap to me.
15. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies. – I don’t think the problem with gun violence is a lack of gun safety. The number of accidental gun deaths pales in comparison to accidental deaths from other causes, such as pools, falling, or car accidents. Even if it were a problem of gun safety, I don’t think the problem is the lack of safe technology. For the most part guns do exactly what they’re designed to do – the problem is the people operating them.
16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes. – Okay. Clarification is good. Not sure why any doctor would choose to ask me if I have a gun in my home, because I’m not sure my decision to own a gun or not is any of my doctors business. But asking the question shouldn’t be prohibited, and if some people thought it was, that should be clarified.
17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities. – See #16.
18. Provide incentives for schools to hire school resource officers. – I presume a “resource officer” is a type of police officer or other type of security personnel. If my presumption is correct, then good! The NRA is getting what it wanted. I have no problems with added security in schools.
19. Develop model emergency response plans for schools, houses of worship and institutions of higher education. – Again, I have no problems with added security in public schools (although again, this should be done at the state level). Churches and colleges seem like private institutions perfectly capable of developing their own emergency response plans, and as Aurora’s movie-theater shooting showed us, mass-shootings can happen anywhere where lots of people congregate. It doesn’t seem necessary for the president to order the creation of emergency response plans for every single locale that a mass shooting could possibly happen – this is just more red tape that people probably wouldn’t pay attention to in the chaos of an actual shooting. The idea that the federal government has to micromanage all this stuff makes me roll my eyes, but it’s still not overly concerning.
20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover. – Once again, clarification never hurt anyone (so long as what he’s clarifying is the original intent of the law, and so long as he’s not adding new mental health services that Medicaid didn’t previously cover).
21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges. – There’s a new word. Finalizing something makes it seem as if these regulations were already in the process of being drawn up (presumably from Obamacare, which was passed nearly four years ago. Forget reading the bill, they still haven’t finished writing it!) Any law which says government should be in the business of deciding which health benefits are “essential” and which aren’t is a bad law. But if it is indeed the law, enforcing it is not only legal, but obligatory.
22. Commit to finalizing mental health parity regulations. – See #21.
23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health. – For those who don’t know, Kathleen Sebelius is the Secretary of Health and Human Services. Arne Duncan is the Secretary of Education. But anyway, a national dialogue, huh? Hasn’t that been exactly what the nation has been having ever since Sandy Hook? It strikes me as hilarious that politicians now think they get a say on what the nation talks about and when, that executive permission is required before people think it is okay to start talking about an issue. What does “launching a national dialogue” even entail? Posters? TV ads? Press conferences? Who knows, and who cares? Like many on this list, it’s a stupid and pointless order, but it’s mostly harmless.
The point is that these executive orders, however pretentious and grand they may seem, are essentially meaningless as it relates to gun freedom in America. The president stayed mostly within his constitutional powers by simply stipulating how existing laws shall be enforced, without attempting to change the law via executive fiat. They will have a minimal effect on policy or gun violence, and the White House knows this. They are designed not to actually make much of a difference, but to a) make it appear as if the President is “taking action” on the issue to appease democrats, and b) divert pressure on Congress to “take action” as well. As the purely cosmetic assault weapon ban proposals demonstrate, both branches care much more about how their actions are viewed than they do about what they really entail.