The President held a compelling – and tearful – event yesterday to announce his proposed executive actions on gun control. Although I have not yet seen formal language from the White House, the fact sheet is here. From what I can tell, these actions (I hesitate to call them Executive Orders, because they really are not that) are very modest.
There is some dispute about whether the President is creating a new federal crime. I am skeptical about that interpretation, and would like to wait until I see something more formal than the White House fact sheet. If so, that is clearly a violation of the separation of powers. But as I understand it as of now, the President is not proposing to change the definition of who is engaged in the business of selling firearms, a definition that Congress has already provided by statute. See 18 U.S.C. 921(a)(21)(C) & (D). Other portions of the actions – like adopting a rule requiring notification to law enforcement if guns are lost or stolen in transit, and a rule requiring background checks for purchases done through a trust or corporation – are already subjected to executive branch rulemaking at the ATF (of course, we can debate whether Congress has unconstitutionally delegated their power in this and other areas, but that’s a separate conversation). And the funding aspects of his proposal clearly require assent from Congress. Again, there may be some constitutional issues here to explore, but I will need to spend more time examining whatever formal action is taken. The more likely objection is based on the separation of powers; I see little here that would even implicate the Second Amendment.
Some, like Senator Joe Manchin of West Virginia and Senator Susan Collins of Maine, have said that they wished the President had worked with Congress to try to achieve these goals, rather than taking executive action. That is a sensible position, but I do not understand those critiques to affirmatively assert that the presidential action here is unconstitutional (though that may be implied).
Given the tenor of his remarks yesterday, one would have expected action much bolder and aggressive than what we have seen so far. To be fair, it’s a tough needle to thread in an area like this, especially when Congress has rejected taking similar action. Maybe the President has been chastened by allegations of previous lawlessness. Maybe the Attorney General and FBI Director (a former DAG) talked him down from a more aggressive – and possibly more clearly unconstitutional – approach. It’s hard to know for sure. But those who were expecting a series of plainly lawless actions by the President are likely disappointed (though that has not stopped some Republicans from continuing with that talking point, making me wonder whether they even understand what’s happening here). Of course, those who were hoping for more meaningful action probably are a little disappointed, too.