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.
The key question is how much President Obama might try to accomplish by executive action in the gray areas. It is possible that he can make background checks for gun buyers mandated by the Brady Bill more effective and efficient and also facilitate better sharing of mental-health information (if he is willing to take on the ACLU in doing so) by executive action. However, if he goes further and attempts to ban assault weapons or high-capacity ammunition magazines unilaterally, he will be on shaky legal ground. Although the Heller Court stated that the right to possess a firearm does not include the right to possess any kind of weapon for any purpose, it is unclear whether a blanket ban on assault weapons and high-capacity magazines (even if duly passed by Congress) would survive a Second Amendment challenge (it may depend, in part, on how such weapons were defined).
Moreover, an executive order banning assault weapons falls within the legislative authority of Congress, and thus implicates the separation-of-powers doctrine. Indeed, Congress has acted in this area, passing a ban on assault weapons and high-capacity magazines in 1994, and — equally significant — also has chosen not to act since the ban expired in 2004. Should the president attempt to supersede Congress’s clear legislative prerogative in this area by executive order, one would expect the courts, under the rationale of Youngstown Sheet & Tube, to strike his measure down.
As important, if the president decides to bypass the legislative process and act unilaterally to limit guns, he will be courting a political disaster. The NRA is not some fringe group of irrational gun nuts seeking to take advantage of the Sandy Hook tragedy to drum up members and donations, as the mainstream media and even the president have implied. Rather, it represents the serious concerns of millions of law-abiding Americans, from both parties, who value their Second Amendment right to gun ownership for self-defense, sport, and protection against disorder or government tyranny, as the Framers originally intended. The president once derisively talked about “bitter” small-town residents’ “cling[ing] to guns or religion.” Well, nothing would make people cling harder to their guns than an effort to ban them by executive fiat. And the courts, most likely, would support them.
The Washington Post recently released a poll showing that a small majority of Americans are more likely to support gun-control measures in the wake of Newtown. If the president taps into that underlying support and is able to approach the matter with a spirit of compromise — and as part of a larger package that must also include serious proposals to better identify and compassionately treat mentally ill individuals who might be prone to violence, and efforts to have the entertainment industry tone down the indiscriminate killing without consequence in video games, television, and movies — perhaps Washington will surprise us and some reasonable gun-control measure could pass. (Whether it would be effective or not is a different question.) Thus, the president should not throw up his hands and conclude that a legislative effort is too difficult to pursue. The political process really is the only way — banning guns by executive order would be unnecessarily provocative and legally unsustainable, and it may not even prevent the next Newtown, which, after all, is supposed to be the goal.
— Scott A. Coffina is a former associate counsel to President George W. Bush and a former assistant United States attorney. He currently is a partner at Drinker Biddle & Reath.