On My Own

Presidents – in Washington, as well as Paris – do like to act on their own.  As today’s New England edition of the New York Times trumpeted, “Obama Vows Broad Campaign to Fight Gun Violence, Issues Executive Orders Bolstering Existing Laws.”

That headline suggests two observations about a hot topic this week: presidential unilateralism. (A.k.a., “an existential threat to this nation.”)

First, “executive order” is a term applied as shorthand to a variety of administrative directives by the president, but it is actually a specific and codified type of such directives. Indeed, the 23 things listed in the White House document (here) laying out the president’s gun control agenda are not executive orders. Presidents have other means of seeking to direct and govern actions by government officials, and executive orders (because they require various levels of review) are not always the most flexible or quickest choice.

Of the 23 actions on the Obama agenda, at least three deal with new or revised regulations (a process housed in the agencies). Two more require executive departments to publish letters or issue reports. One is a nomination (of an ATF director.) One is, at best, hugely vague (“maximize enforcement efforts to prevent gun violence”). Three others, according to the White House website, are presidential memoranda—less formal and not always as well cataloged as executive orders; three or four more look like they could be done via memorandum as well, or via even less formal communication with the department involved.

In fact, exactly zero new executive orders are posted on the White House site as of this writing (Thursday evening.)  Which is perhaps why the (presumably printed later) city edition of the Times amends the earlier subhead by correctly noting “executive steps ordered” instead.

Second: As this accounting implies, what is notable about these particular directives is how constrained they are. Some members of Congress, not wanting to waste perfectly good press releases, denounced them anyway. The implication of the present announcement is that the legislative framework of gun control is (a) limited and (b) not particularly rife with presidential discretion.

Obviously this is not true everywhere. The President has certainly been encouraged – mostly by Democratic members of Congress (see here and here) and columnists – to utilize a gaping loophole in a prior statute to issue the now-infamous trillion-dollar platinum coin. He has also been urged to interpret the 14th amendment in a manner that would give him power to ignore the statutory debt limit. That he has thus far demurred from each approach is to his credit, in my view, but certainly both cases provide the textual ambiguity so useful to expanding presidential authority.

In other cases, add a large dollop of secrecy as well. The Obama administration has stressed that its administration of the war on terror is (in contrast to President Bush) grounded in specific legal authority – notably the 2001 Authorization for the Use of Military Force, and the laws of war. But as Vicki Divoll’s powerful op-ed suggests, how that authority applies to the targeting practices for drones generally – and for those that are intended to kill American citizens in particular – is simply not known. Perhaps congressional outrage might be more productively transferred from protecting the 2nd amendment to protecting the 5th…

5 Responses to On My Own

  1. Andrew C January 18, 2013 at 1:48 am #

    The memorandum entitled “Engaging in Public Health Research on the Causes and Prevention of Gun Violence” does seem to make (productive and correct, I should add) use of textual ambiguity in the 1996 law that constrains the CDC’s use of funding which apparently stated “None of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.” The memorandum, as I read it, is about gun “violence,” but obviously, in the context of Obama’s other efforts, it would seem to be funding “about” gun control. Of course, just because science is “about” something doesn’t mean it automatically advocates or promotes some particular policy.

    Maybe this is just Republicans misunderstanding the scientific method. It would be poor research form for the CDC to begin a study with the established intent of promoting gun control.

    • Eric January 18, 2013 at 2:42 am #

      That really is a tremendously interesting memorandum. I’d thought about that vagueness in the statute, too.

      • Andrew Rudalevige January 18, 2013 at 8:40 am #

        As you note, the CDC should not (and I think would not) begin a study with a conclusion so clearly defined as to defy the terms of the statute — so I’d argue, at least weakly, that the issue here was not its vagary but that the Clinton administration decided not to push such studies (perhaps in the wake of the first assault weapons ban, and approaching the 1996 elections. The Bush administration then had little interest in reviving them.) But I would agree that gathering data on gun violence is likely to show there is lots of it, which will then serve as, sorry, ammunition on behalf of gun control efforts. (But, by the nature of the research process, in quite the long term. So if the argument for executive action is that it’s fast, this probably doesn’t do much ‘on the ground.’)

  2. RobC January 18, 2013 at 4:01 am #

    Possibly channeling Paul Krugman, Professor Rudalevige refers to the “gaping loophole in a prior statute” that would purportedly permit the issuance of a trillion dollar platinum coin. Though the possible issuance of such a coin is no longer on the table, it’s perhaps worth noting that there is no such gaping loophole. Tom Maguire demonstrates pretty convincingly that the law permits the issuance of only bullion platinum coins (i.e., coins that are valued by their weight in platinum) and proof platinum coins, a significant impediment since the U.S. doesn’t possess a trillion dollars worth of platinum. But thanks for playing our game, Professor Krugman, we have some lovely parting gifts for you.

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