There’ll be a hubbub about executive action / orders by the time you’re reading this post. That arrogant, pompous wimp of a POTUS we have right now—does anyone else wonder how President Obama can be, at one and the same time, a king and a dictator and a skinny, wimpy dude who doesn’t have the cojones to stand up to anyone—will issue an Executive Order regarding guns in America later today.
From my perspective the Executive Order—a highlights sheet has already been posted—will do little, and ought to bring forth little controversy. Others will surely disagree. Here, and because it’s Law Day at MRW, I want to focus on the basis for presidential authority to act.
Executive Orders have been around since 1789, although there was no numbering system existed until 1907. (Oddly, the State Department keeps the log.) Every president has issued Executive Orders, and while many in the political world like to use counts to suggest / defend against executive overreach, what matters is the quality, not the quantity. That said, President Obama has issued many fewer Executive Orders than other two-term presidents.
Executive Orders exist because the U.S. Constitution gives power to the president. First, Article II, Section 1, states: “The executive power shall be vested in a President of the United States of America.“ Section 3 of Article II provides, among other things, that the president “shall take care that the laws be faithfully executed.”
The concept of Executive Orders grows out of the recognition that statutes cannot address every possible issue which might arise. It’s the same principle which underlies the regulatory regimen we have developed, as well as the notion that courts interpret laws and, in many instances, “fill in the blanks.”
The newest Executive Order has 23 parts. Some are ought to be totally non-controversial. For example, there is No. 7: Launch a national safe and responsible gun ownership campaign. Or No. 11: Nominate an [Alcohol, Tobacco and Firearms] director. Or No. 18: Provide incentives for schools to hire school resource officers. Ho hum, for sure!
The big overreach is simply not evident, at least to me. If there’s a central theme in the Executive Order it’s that people should figure out how to make the laws work, where there may be hints, or more, that government cannot enforce existing laws.
Executive Orders have, in the past mattered. Big chunks of the New Deal came about by way of Executive Orders issued by President Franklin Roosevelt. President Harry Truman took over the steel mills, and President Dwight Eisenhower enforced Brown v. Board of Education, both by using Executive Orders. And President George W. Bush issued Executive Order 13233, which limited access to presidential papers. (President Obama revoked the order, restoring access provided in an Executive Order issued by President Ronald Reagan.)
My sense of “nothing to see here” was affirmed, moments ago, by New York City Police Chief William Bratton. In an NPR interview, Chief Bratton applauded the president’s effort, and said he doesn’t expect the Executive Order will have any significant impact on gun violence. On the other hand, I’ve heard reports that gun sales are climbing fast, so maybe the Executive Order does matter. What a country, huh!
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