The horrific recent mass murder of 26 children and adults at Sandy Hook Elementary School predictably has reignited the gun-control debate in this country. Over the past month, the Obama administration has focused primarily on guns in its initial response to the Newtown shooting. The task force led by Vice President Joe Biden has met mostly with groups either in favor of or opposed to greater restrictions on guns and ammunition. Facing strong political opposition in Congress from both parties, Vice President Biden and President Barack Obama each have suggested publicly that the president will act by executive order to restrict guns.
This trial balloon for unilateral action by the president raises the question, “Can he do that?” The answer is, it depends how far he tries to go.
Executive orders are not constitutionally sanctioned or prohibited, but once signed, they have the force of law. Presidents have utilized them to drive policy within the executive branch since the dawn of the republic. In some cases, presidents have acted quite aggressively through executive orders. President Lincoln suspended the writ of habeas corpus during the Civil War; President Roosevelt established internment camps during World War II; and President Truman mandated equal treatment of all members of the armed forces — all through executive orders. Significantly, all three of these actions were rooted in the president’s constitutional authority as commander-in-chief of the armed forces, in the midst of national emergencies.
Presidents acting by executive order have been challenged in court, most notably in Youngstown Sheet & Tube Co. v. Sawyer (1952). In Youngstown Sheet & Tube, the Court held that President Truman had exceeded his authority by directing the seizure of steel mills to avert a strike during the Korean War, stating that “the president’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.” Thus, the majority found that Truman had strayed too far into the province of the legislature, violating the separation-of-powers doctrine.
But it was Justice Robert Jackson’s concurrence that established the three-part framework for considering executive authority going forward. First, there are the areas of express or implied constitutional or statutory presidential authority, where the president’s authority for executive action is at its height. Second, there are areas where Congress has not legislated, and where the line of authority between the president and the Congress is vague or overlapping. Finally, there are areas where presidential action is “incompatible with the express or implied will of Congress,” where the president’s authority is at its lowest.
The analytical framework for executive action established by Justice Jackson thus provides a basis to consider how executive action by President Obama to restrict guns would fare in a legal challenge.
It is unlikely that the president would move to confiscate or prohibit handguns through executive action, or even through legislation, for that matter. The Second Amendment is alive and well. The U.S. Supreme Court has reaffirmed the right of individuals to possess firearms for self-defense and other traditionally lawful purposes twice in the past five years. And to be clear, President Obama has never suggested he would pursue this course of action.
On the other end of the spectrum, pursuant to his constitutional mandate to “take Care that the Laws be faithfully executed,” the president clearly has the authority to direct the Department of Justice to prioritize more comprehensive enforcement of the gun laws already on the books or to enhance tracking of the paperwork related to the sale and registration of guns. Presidents George H. W. Bush and Bill Clinton actually implemented gun-control measures by executive orders pursuant to this authority, banning the importation of certain assault weapons under existing gun-control laws.