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The New York Times Editorial Board has a piece on A1 above the fold. It calls for banning and confiscation of “combat rifles” and “certain kinds of ammunition.”

Certain kinds of weapons, like the slightly modified combat rifles used in California, and certain kinds of ammunition, must be outlawed for civilian ownership. It is possible to define those guns in a clear and effective way and, yes, it would require Americans who own those kinds of weapons to give them up for the good of their fellow citizens.

And the Times suggests that the Presidential candidates (read Hillary Clinton) should champion this cause:

What better time than during a presidential election to show, at long last, that our nation has retained its sense of decency?

I admire the Times’s candor.

Also, I should note that the cert petition in Highland Park–which considers a ban on so-called “assault weapons”–is still pending after 5 relists.

For the past few weeks, there have been rumblings that the President can take a series of executive actions to expand the scope of federal gun control enforcement. Last month 23 constitutional law professors released a “Statement” on the executive actions President Obama can take to reduce gun violence. The letter was announced by UCLA LawProf Adam Winkler on the ACS Blog. The first five paragraphs flesh out the scope of the Second Amendment, and remind us (in case anyone forgot) that the Heller Court said that the Second Amendment was not absolute. (It cites books by Winkler, Saul Cornell, and Robert Spitzer).

The remainder of the article, however, has nothing to do with the 2nd Amendment, or really the Constitution at all. Rather, it focuses on executive actions President Obama can take to expand background checks. The only conceivable constitutional hook is the Take Care clause:

Within our constitutional government of divided powers, it falls on the President to ensure that these congressional mandates “be faithfully executed.”

The Professors argue that the President has a duty, based on the Take Care clause, to issue gun control executive orders that “reflect the clear will of Congress.”

As such, the President must ensure full compliance with the federal gun laws that reflect the clear will of Congress. To do so, it is appropriate for the Administration to issue such rules and regulations as are necessary to ensure that the laws are enforced as written and intended. Executive action to ensure robust enforcement of the law—including issuing clarifying guidance and directing comprehensive enforcement of federal gun laws—is entirely compatible with the will of Congress and the President’s constitutional authority.8

8. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636-38 (1952) (Jackson, J., concurring) (noting that the president’s authority is at its lowest when “incompatible with the express or implied will of Congress,” but at its peak when the President acts consistent with the express or implied will of Congress).

The Take Care Clause and Youngstown seem entirely orthogonal to the orders at issue, but I digress. Afterwards, the letter adopts a recent report by Everytown for Gun Safety:

Accordingly, we join the many individuals and organizations that have urged the President to take every action within the power of his Administration to reduce gun violence and save lives. A recent report by the gun-violence-prevention organization Everytown for Gun Safety outlined more than a dozen actions within the President’s power,9 and we urge the Administration to act promptly to explore how to implement these and any other measures within its authority.

Based on the Everytown report, the professors suggest three executive actions the President can take.

1. “Clarifying which gun sellers are ‘engaged in the business’ of dealing firearms, and therefore must obtain federal licenses and conduct background checks on would-be gun purchasers.”
2. “Directing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Federal Bureau of Investigation (FBI) to identify which prohibited persons are most likely to commit crimes after failing a background check when attempting to buy a gun; to prosecute these individuals for illegally attempting to obtain firearms; and to inform state law enforcement whenever a prohibited person in their state fails a background check.”
3. “Issuing guidance to ensure that the federal statute prohibiting gun possession by persons convicted of “misdemeanor crimes of domestic violence” is interpreted broadly to prohibit gun possession by convicted abusers, regardless of their marital status.”

Any litigation on these orders will be resolved based on a question of statutory interpretation, and whether Congress afforded the President sufficient interpretive authority to issue these executive orders absent notice-and-comment rulemaking. Many of the laws referenced in the letter (including the National Instant Criminal Background Check system) are more than two-decades old. If the “clear will of Congress” hasn’t manifested over the course of the past twenty years, including the first seven years of this presidency, it is unclear how “clear” that will is. But beyond legal hurdles, there are political hurdles.

The New York Times reports today that the President is considering taking executive actions along the lines of Everytown and the Law Professors:

His advisers believe that by defining the number of gun sales or other factors needed to qualify as a “high-volume” dealer, Mr. Obama could greatly increase the number of sales subject to such screenings, weeding out more of those barred from buying guns because of criminal offenses, domestic abuse or mental health issues.

Other steps under consideration by the president’s aides include broadening a provision that bars domestic abusers from buying guns, as well as giving the F.B.I. more time to run background checks. Taken together, the steps could require background checks for hundreds of thousands of additional gun sales.

But the Obama White House (as is sometimes the case) is not as gung ho as the professoriate. (See my essay of how the Obama OLC rejected the immigration professors who urged him to grant deferred action to the parents of the DACA beneficiaries).

But top White House advisers say they are still struggling to find a way for Mr. Obama to use his executive powers and tighten restrictions on gun sales, sidestepping a gridlocked Congress. While he has ordered officials to find ways for him to act unilaterally, aides said they have run into legal and political hurdles that make that difficult.

“This policy-making process involves consideration of complex policy, legal and operational considerations, and the president’s team wants to make sure that everything we do in this area makes good common sense, is on strong legal footing, and can be effectively implemented,” said Eric Schultz, a White House spokesman. “This work is very much underway.”

The White House has focused its deliberations on an executive action that would detail who should be considered a high-volume gun dealer, a move that could expand background checks to a huge number of sales at gun shows, online, and elsewhere that now fall outside the law.

Specifically–and you have to read between the lines to figure out what the Times is getting at–there is no funding to actually enforce these proposed orders.

But the aides acknowledged in interviews that using the president’s executive authority to take these steps would pose a complex set of obstacles. For instance, changing the definition of “gun dealer” is more complicated than simply lowering the threshold for how many gun sales are required to be considered a high-volume dealer.

White House officials said it is highly unlikely that Congress would be willing to finance the additional costs of enforcing the new definition or pay for additional background checks, which are conducted by federal law enforcement agencies.

Running background checks cost money–money that has not been appropriated. If there is no money for the background checks, they cannot be performed.

In other words, even if President Obama issues these orders, absent some sort of funding chicanery, he would be unable to actually implement it. In contrast, DACA and DAPA are paid for by user fees, so he does not need to depend on any congressional appropriations–indeed even shutting down DHS could not stop DAPA.

Further, there is no indication of how many gun sales this would even apply to:

In addition, officials said there was almost no accurate data about how many gun sales are made at gun shows or online by people who are not considered high-volume dealers. That makes it difficult to know how many people would be affected if Mr. Obama takes action to reinterpret the law.

So there is no estimate of how much funding would even be needed! Even if they move some funds around, it may not be enough!

But these details are unimportant to groups supporting the change.

Even so, gun control advocates who have met with the White House say they are optimistic that Mr. Obama will move ahead with at least some of the steps under discussion.

“I think they’ve arrived at a place where they’re committed to a set of executive orders,” said Pia Carusone, executive director of Americans for Responsible Solutions, the gun control group started by Ms. Giffords after her shooting. Ms. Carusone, who has attended several meetings with officials recently, said of Mr. Obama: “He doesn’t want to leave the White House without doing anything on guns.”

In any event, these sort of 11th-hour executive orders will very likely be tied up in litigation until well after January 20, 2017.  (This is no doubt what gives the White House serious pause). At that time, another President can rescind these orders on his first day in office, and dismiss any pending indictments.

My post on Judge Posner and the Constitution struck a nerve. In the past thee days, that post alone has received nearly 6,000 hits. (For a point of comparison, on average, my blog gets about 40,000 hits a month). It also generated comments throughout the blogosphere (see Instapundit, Volokh Conspiracy, Above The Law, The Federalist, and elsewhere). But the most unexpected response came in my blog’s comment thread from U.S. District Court Judge, and once-and-future blogger Richard Kopf.

Dear Professor Blackman,

With great respect, I think you are being too hard on Judge Posner when you essentially accuse him of violating his oath of office. While it is true that Posner rivals Holmes as a realist, Judge Posner follows explicit Constitutional commands (despite their old age) and Supreme Court precedents that are indisputably on point.

It is true that when he finds ambiguity he drives his truck through the open door and that is true whether that ambiguity is found in the Constitution or the Court’s prior opinions. But so what?

The Constitution does not specify a particular mode of Constitutional interpretation. Chief Justice John Marshall taught us that in 1803.

All the best.

Richard G. Kopf
Senior United States District Judge (Nebraska)

I appreciate the reply from Judge Kopf.

Judge Posner doesn’t simply drive a truck through that texts that he finds “ambiguous.” Judge Posner insists that even a crystal-clear text, like the 7th Amendment, ought not to be enforced due to inflation. If Judge Posner truly believes that texts written in the 18th century are “absurd” or “nonsense,” then it is impossible for him to take one of those texts–the oath clause–seriously.

In an interview with Sahil Kapur at Bloomberg Politics, Sen. Ted Cruz offered several remarks about what he is looking for in a Supreme Court Justice, and offered some opinions on Lochner and Wickard v. Filburn.

First, Cruz explained that Republicans have an “abysmal record” for picking Supreme Court Justices, citing in particular the selections of Chief Justice Roberts, Justice Kennedy, and David Souter, as well as throwbacks to Brennan, Warren, Stevens, and Blackmun. The President should avoid stealth candidates, and focus on judges with a “long paper trail.”

“The Republicans have an abysmal record. We bat about .500,” he said. “About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters.” …

Driving east in his car after a campaign stop near Iowa City, the accomplished Supreme Court litigator and former Texas solicitor general said he’d only settle for “rock-ribbed conservatives” who have “a long paper trail as principled conservative jurists.” His ideal contender would be someone who has refused to bow to pressure, rather than a “stealth candidate” without a demonstrable conservative record.

Cruz cited Souter and Roberts (whom Cruz praised at the time he was appointed, an appointment Cruz has since called a mistake) as examples of “stealth” Republican-selected nominees without a proven conservative record. If more conservative judges like Edith Jones and Mike Luttig were picked, he argued, Obamacare would have been struck down in 2012 and states wouldn’t have lost their authority to ban same-sex marriage. (Both cases were decided by a 5-to-4 margin.)

I am glad that Cruz is citing candidates who have “long paper trials” and are not “stealth candidates.” (These are traits that Randy Barnett and I extolled in the Weekly Standard). This is a departure from his 2005 Op-Ed in National Review, where he championed Roberts, in spite of his limited judicial record. Indeed Cruz cited, among others, Earl Warren, Sandra Day O’Connor, and David Souter’s limited experience to support Roberts.

Second, Cruz said that that the President must be willing to spend the political capital for a life-time appointment.

“Unlike many of the other candidates, I will be willing to spend the capital to ensure that every Supreme Court nominee that I put on the court is a principled judicial conservative,” Cruz said. …

Presidents Bush took the “easy way out” by picking Souter and Roberts, Cruz said. “They didn’t want to spend the political capital trying to confirm a proven conservative.” As examples of principled conservative justices he’d model his nominees after, Cruz cited Scalia, Clarence Thomas, William Rehnquist, and Samuel Alito.

Randy and I made the same point in our article.

Third, Ted Cruz does not think Lochner was correctly decided:

“I am not a supporter of Lochner,” Cruz said. “I believe that minimum wage laws harm the most vulnerable in our society, that they are bad policy. As a legislator, I would vote against those laws. But I do not believe it is the role of the courts to strike them down. The states have the constitutional authority to impose foolish laws … So I disagree with some conservatives who argue, à la Lochner, that the courts should impose conservative policy.”

Lochner wasn’t about the minimum wage, but a maximum hour law, although this is generally viewed as part of the broader “Lochner Era.” Sen. Rand Paul has come out in defense of Lochner during his 2013 filibuster, citing the work of David Bernstein.

Fourth, Cruz does not think Wickard v. Filburn was correctly decided:

Cruz shares those conservative concerns, saying Wickard wasn’t correctly decided.

“No,” he said. “It was not.”

Fifth, Cruz chuckled if he would pull a Taft, and serve as Justice after serving as President.

Before ending the interview, Bloomberg Politics asked Cruz if he’d accept a hypothetical nomination to the Supreme Court by a future president.

He paused for three seconds, revealing a sense of intrigue behind his smile.

“One step at a time,” he said. “Time will tell if I’m in a position to assess that offer.”

Although, a better question is whether a President Cruz would appoint himself as Justice in his final term.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here and here), Jeb Bush (here and here), Rand Paul (here, here, and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.

Disclosure: I have advised the Rand Paul campaign.

Mark Sherman, Greg Stohr, and Richard Wolf (in that order) all tweeted that the Court has only give Texas an 8-day extension, rather than the 30 days it requested. This virtually guarantees the case can be heard this term.