THE HYSTERIA OVER OBAMA EXECUTIVE ORDERS
Posted by Peter M. Shane on January 17, 2013
Not being a psychiatrist, I don’t really understand why the President’s fairly modest efforts at gun policy reform seem to have utterly deranged some of his political opponents. But talk of impeachment in connection with his gun-related “executive orders” is, to put it mildly, ridiculous.
To put matters in context, it helps to understand “executive orders.” These are presidential directives – sometimes formally called “executive orders,” sometimes not – that are issued to help manage the federal government. There is no authoritative definition of “executive orders” that distinguishes them from “presidential memorandums,” “presidential proclamations,” or – as in the case of the George W. Bush first directive on military commissions – just “orders.” The Federal Register Act lumps them together with “presidential proclamations” as documents that, with some exceptions, must be made public.
Although some news outlets reported that President Obama signed 23 executive orders relating to gun violence in America, he actually signed only three. Although they were called, “Presidential Memorandums,” two, at least, were indistinguishable from run-of-the-mill executive orders in that they applied to the heads of all executive departments and agencies. The other, addressed to a single agency, takes a form that would typically be called a “memorandum.”
Executive orders, like any other form of presidential initiative, must be rooted in some form of legal authority. Some are issued in the President’s constitutional chief executive capacity, and set forth managerial requirements for specified federal operations. Some are issued pursuant to explicit authority delegated to the President by statute, or are issued as a way of complying with obligations Congress has imposed on the President or the executive branch more generally.
What executive orders cannot do is impose obligations or restrictions on the public, unless Congress, through legislation, has expressly or implicitly conferred authority on the President to do so. It is worth noting that none of President Obama’s executive orders on gun violence do any such things.
One of these memorandums requires federal agencies to step up their efforts to comply with the NICS Improvement Amendments Act of 2007. As the memorandum explains, “Among its requirements, the NIAA mandated that executive departments and agencies (agencies) provide relevant information, including criminal history records, certain adjudications related to the mental health of a person, and other information, to databases accessible by the NICS.” The memorandum puts the Justice Department in charge of coordinating government-wide compliance with the Act, and requires agencies to keep the President and the Justice Department informed of their progress.
Not only is this a constitutionally unremarkable order, but it perfectly comports with the President’s constitutional obligation to take care that the laws be faithfully executed.
A second memorandum directs the Departments of State, the Treasury, Defense, Justice, the Interior, Agriculture, Energy, Veterans Affairs, and Homeland Security, and potentially other agencies and offices that “regularly recover firearms” in the course of their investigative activities to ensure that such firearms are “traced through ATF at the earliest time practicable.”
The memorandum asserts, “Over the years, firearms tracing has significantly assisted law enforcement in solving violent crimes and generating thousands of leads that may otherwise not have been available. . . .If Federal law enforcement agencies do not conscientiously trace every firearm taken into custody, they may not only be depriving themselves of critical information in specific cases, but may also be depriving all Federal, State, and local agencies of the value of complete information for aggregate analyses.”
This memorandum is thus an unremarkable presidential exercise in priority-setting. Federal agencies have the authority to trace the firearms they take into custody. The President is saying, “Do it quickly.”
The third memorandum directs the Secretary of Health and Human Services, through the Director of the Centers for Disease Control and Prevention and other scientific agencies within her department “to conduct or sponsor research into the causes of gun violence and the ways to prevent it.” This also is a pure exercise in agenda-setting. HHS and the CDC already have legal authority to conduct or sponsor research on public health problems. The President is telling them to put “gun violence” on the list of things they research.
In short, none of these memorandums requires the public to do anything, expands the powers of the federal executive, or evokes even remotely the ghost of George III. So, please, let’s get a grip – preferably not pearl-handled.
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