“I get too many letters from parents, and teachers, and kids to sit around and do nothing”

January 1st, 2016

The overarching theme of the Obama Presidency, and the subtitle title of my third book,“A Constitutional History of the United States: 2009-2016,” is Gridlock and Executive Power. Congress won’t do what the President wants, so the President uses executive action to accomplish what he originally wanted to Congress to do. This theme will be especially poignant in his final year in office, where he controls neither house of Congress, and all eyes are already focused on his replacement. In an email to supporters, Obama recently wrote “I’ve got 12 months left to squeeze every ounce of change I can while I’m still in office. And that’s what I intend to do.”

Multiple media outlets have reported that within the next week, the President will sign a series of executive orders concerning gun control. His rationale for signing them is the same for all of his other executive actions. People want something done, Congress won’t do it, so I can’t sit around doing nothing.

The WSJ reports today:

Facing stiff resistance to gun-control legislation in Congress, Mr. Obama has signaled that he plans to act on his own. The president has directed administration officials to explore any steps he could take on guns without lawmakers’ help, and he said in his weekly address that he would sit down with Ms. Lynch on Monday “to discuss our options.”

I get too many letters from parents, and teachers, and kids to sit around and do nothing,” Mr. Obama said in the address, which was released Friday morning. …

“We know that we can’t stop every act of violence. But what if we tried to stop even one?” Mr. Obama said. “What if Congress did something—anything—to protect our kids from gun violence?”

Obama said he wants his team to find every conceivable legal authority to justify these actions.

White House spokesman Eric Schultz said Mr. Obama asked his team to “scrub existing legal authorities” and assess actions that could be taken administratively.

“The president has made clear he’s not satisfied with where we are and expects that work to be completed soon,” Mr. Schultz said.

The President used similar language in 2014 to describe his approach to locating legal authorities for his executive action on immigration:

“In the face of that kind of dysfunction, what I can do is scour our authorities to try to make progress.

If our experience with Obama executive branch lawyers tells us anything, with respect to domestic, statutory issues–where Congress could (theoretically) override the President–the authorities stretch as far as they wish.

So what does the President have in mind for this latest batch of executive action?

The Center for American Progress, which has close ties to the White House, released a report in October detailing options for strengthening those regulations and redefining what it means to be engaged in the business of dealing in firearms. Everytown for Gun Safety, the group led by former New York City Mayor Michael Bloomberg, released its own report on this subject in November and made several recommendations to the White House, including urging that a numerical barrier be set for the number of annual sales permissible as an individual seller.

“Under current law, the dividing line between the professional gun sellers and everyone else is unnecessarily vague,” said Ted Alcorn, the research director for Everytown.

The president met in November with Mr. Bloomberg and John Feinblatt, president of Everytown, to discuss potential executive actions Mr. Obama could pursue.

I discussed a letter signed by a number of prominent law professors, including Adam Winkler and others here. My last sentence sums up the issue well enough:

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.