Yesterday President Obama signed 23 separate executive actions in an effort to prevent the kind of gun violence recently seen in Newtown, Connecticut. Gun control advocates saw the actions as a positive step, but many conservatives immediately expressed outrage. Senator Rand Paul (R-KY) announced his intention to “nullify” President Obama’s actions. Paul justified his move by suggesting that President Obama’s actions violated Article 1, Section 8 of the Constitution and the Second Amendment.
Article 1, Section 8
Paul was likely appealing to the general concept of separation of powers in his reference to Article 1, Section 8 of the United States Constitution. This portion of the founding document simply lists the power granted to Congress, such as the power to tax and to borrow money. Article 1, Section 8 never describes what the President cannot do.
If Paul is trying to suggest that all executive actions violate section 8 he will have a tough sell. Executive orders have been common place for many decades now. President Reagan signed dozens of executive orders with further reaching consequences than anything President Obama signed yesterday.
The Supreme Court has put limits on executive orders. In the Youngstown Sheet & Tube Co. v. Sawyer case the Supreme Court revoked an executive order from President Truman which would have authorized the seizure of steel mills as part of the Korean War effort. In that decision, the Supreme Court said that executive orders may not directly violate the Constitution or a law passed by Congress. However, the Court also affirmed the right of presidents to issue executive orders as part of the duty to execute the laws.
A careful reading or President Obama’s 23 executive actions reveal that none violate the Constitution or any law passed by Congress. In fact, many of President Obama’s executive actions, such as the nomination of an ATF director, are expressly allowed by both the Constitution and statutory law. Nearly all of Obama’s executive actions simply modify the way his department enforce the law, which very much fits within the President’s power granted within Article 1 of the Constitution.
Paul is correct on one point. The Congress could directly repeal many of President Obama’s actions if they so desired. The Congress could not keep President Obama from nominating an ATF director, but they could refuse to confirm that director as they have for many years now. President Obama’s executive action will “require federal agencies to make relevant data available to the federal background check system.” If Congress wants to pass a law requiring agencies to not share data they can, and such an action would override President Obama’s executive action.
Finally, the Congress could also simply defund many of President Obama’s executive actions. For example, executive action number seven will “launch a national safe and responsible gun ownership campaign.” The campaign will certainly require funds, so if they want Congress can prohibit that from happening, though the measure hardly seems controversial.
The Second Amendment
Paul’s Second Amendment argument is much more dubious.
The debate over whether the Second Amendment can be restricted at all has long been settled. Not even the NRA suggests that Americans should be allowed to carry around fully automatic weapons and grenade launchers. In District of Columbia v. Heller the U.S. Supreme Court upheld the right of individuals to bear arms, but was also careful to note that there are limitations to that right. The Court also made clear that the Second Amendment does not confer the right to carry firearms upon everyone, such as the mentally, or everywhere, such as schools.
None of the 23 executive actions signed by President Obama direct the seizure of guns. Instead, the actions simply seek to enforce already existing limitation on gun control that were expressly approved in the Heller decision. Many of President Obama’s executive actions, such as number nineteen which directs the development model emergency response plans for schools, has nothing to do with Second Amendment at all.
Congress can repeal President Obama’s executive actions because the Constitution grants them the right to do so. However, there is nothing in the Constitution which prohibits President Obama from implementing these executive actions in the absence of a law from Congress to the contrary.