CONSIDERATION OF THE LEGALITY OF EXECUTIVE ACTIONS MUST PRECEDE DISCUSSION OF THE REASONS BEHIND THEM

With the usual fanfare and the usual props standing in front of him and behind him, President Barack Obama told the public, on January 5, 2015, at 1230 hours, EST, on a NBC special news report, that he, in his infinite wisdom, will take unilateral action to expand gun background checks – in effect, turning private individuals, who may wish to sell a firearm, into gun dealers, who must comply with federal laws, governing gun background checks. But how Obama intends to effectuate this in the absence of funding by Congress, having now offended Congress, and without violating the Second, Fourth, and Fifth Amendments to the United States Constitution, and without violating the Ninth and Tenth Amendments to the United States Constitution, presents a most pressing question – and a deep conundrum for anyone who cares deeply about preserving the sanctity of the U.S. Constitution and yet would wish, at one and the same time, to give this devil his due.

But, there is a preliminary question. It is one that goes to the presumed authority upon which Obama works his legerdemain on the American people. Now, it is all well and good for Obama to be concerned about curbing gun violence on the part of criminals, lunatics, and, of late, Islamic terrorists; and we have a plethora of laws to contend with this problem if only the laws we presently have were duly enforced by the Obama Administration. That would go a long way in effectively curbing the very violence Obama says he is so keen on curbing. Moreover, with millions of law-abiding Americans properly armed, that, too, would go a long way in effectively dealing with the problem of those, who, under present law, should not have access to firearms anyway. But, like all good stage magicians, Obama is not interested in any of that. His interest is the same as those of all antigun zealots: de facto repeal of the Second Amendment. And, in that singular pursuit he attempts to distract his audience with intricate sleight-of-hand.

The sleight-of-hand here has to do with the failure of Obama to point to anything in the Constitution or in Statute that might seemingly give him the authority to act behind the back of Congress, essentially operating as both Chief Executive and, Consummate Legislator. But as we have seen, Obama would rather talk about his reasons for acting unilaterally, then he would to address the legal footing upon which those reasons might rest. For, given even the best of reasons that ground a President’s actions, if those actions are illegal, the reasons he relates for those actions are of no count. Clearly, Obama is on thin ice here and he knows it. Thus, he avoids broaching the salient, critical legal issue in favor of pontificating upon the superficial, rhetorical one.

So it is that Obama, in typical rhetorical mode, doesn’t talk about the authority that presumably permits him, legally, to circumvent Congress, but, rather, argues that, because Congress has not acted as Obama wishes Congress to act, he, Obama, President and “Boss,” can and will do so, himself. Doing so, the Boss makes it so, and making it so, makes it right – this, coming from a Harvard Law School graduate, and one-time Constitutional Law professor.

What Obama doesn’t talk about is a matter that the public must become cognizant of and knowledgeable about: the issue of executive directives. The Arbalest Quarrel touched upon this in its previous article. The issue of lawful use of executive directives is of the utmost importance to the sanctity of the U.S. Constitution and to the preservation of a Free Republic, for a Free Republic is a State that is ruled and governed by law, not by men. Now the authority to make laws rests solely with Congress. Article I, Section 1 of the United States Constitution sets forth, clearly and categorically: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The very notion of executive directives directly confronts and challenges the singular authority of Congress to make laws.

The Arbalest Quarrel is not naïve to think that executive directives have not been used – often routinely so – by past Presidents, and a few have definitely abused their use. Past U.S. President Bill Clinton is one Chief Executive who has abused the use of executive directives. But President Obama’s use of executive directives is surely the most audacious. Let us explain.

We may start with a study by one legal scholar, Todd F. Gaziano, Senior Fellow in Legal Studies and Director of the Center for Legal Judicial Studies at The Heritage Foundation. Gaziano has done substantial research on executive orders, and, in an aptly titled law review article, “The Use and Abuse of Executive Orders and Other Executive Directives,” 5 Tex. Rev. Law & Pol. 267 (Spring 2001), he has written a cogent and comprehensive essay on the nature of executive directives.

The author discusses the authority upon which executive directives rest, and the circumstances under which they may be deemed lawful or not. Gaziano makes poignantly clear that, “Ultimately the authority for all presidential orders or directives must come from either the Constitution or from statutory delegations” (at page 276). But, there is nothing in the U.S. Constitution that expressly provides for the use of executive directives by the President. So, can lawful use of executive directives be implied from an “express grant of power?” Gaziano says that the authority to issue executive directives can be implied or even be inherent in the substantive power of the President “. . . in the exercise of his constitutional and statutorily delegated powers: [as] Commander in Chief, Head of State, Chief Law Enforcement Officer, and Head of the Executive Branch” (at page 277). Gaziano adds, “When the President is exercising powers inherent in Article II of the Constitution, Congress has much less ability to regulate or circumscribe the President’s use of written directives” (at page 281).

The paramount question is, then, how do we know when a U.S. President is abusing executive directives? Gaziano says, “A legal framework of analysis is required in order to separate legitimate presidential directives from those that are abusive or improper. Unfortunately, a dearth of governing law and prudential guidelines in the area of executive orders makes the articulation of that framework difficult. Reference to history, therefore, is essential when seeking to uncover the necessary analytical structure” at page 281). Gaziano adds, importantly, “The President’s authority, to act or issue an executive order, is at its apex when his action is based on an express grant of power in the Constitution, in a statute, or both. His action is the most questionable when there is no grant of constitutional authority, either express or inherent, and his action is contrary to a lawful statute or provision of the Constitution” (at page 284).

Gaziano mentions wartime crises as one example of use of executive directives that can, plausibly, albeit, controversially, be employed by the Chief Executive. But, in the case at hand, Obama has neither expressly stated nor intimated that his use of executive authority to infringe the Second Amendment and supersede Congressional authority proceeds from a wartime crisis. Is there, then, a statutory basis upon which Obama might rely that can feasibly support his use of executive directives to expand gun background checks? If so, Obama has not pointed to any, nor can he. His unilateral action to expand gun background checks is, on its face, statutorily illegal because Congress has clearly established the parameters of permissible gun background checks in the Brady Handgun Violence Prevention Act of 1994. If Congress sought to expand upon gun background checks as promulgated in the Brady Act, it would have done so. It has not. So, Obama has no statutory basis upon which to argue independent authority to act to expand background checks statutorily.

Moreover, at the moment, at least, Obama has not indicated that he has obtained legal support for use of executive directives to expand gun background checks, in the form of an opinion from the Office of Legal Counsel (“OLC”). The New York Times has previously reported that Obama has contacted the Attorney General, ostensibly to ask the Office of Legal Counsel for an opinion that might, perhaps, provide a legal foundation, however implausible that might be, upon which Obama’s executive directives, expanding gun background checks, may meet with Justice Department approval. As Gaziano says, “For over one hundred years, the President has asked the Attorney General or another senior official in the Department of Justice to review draft executive orders and proclamations with regard to their form and legality” (at page 292). If Obama obtains such an legal opinion here, the public should be permitted to see it. If he fails to secure a legal opinion from OLC, this would strongly suggest that the OLC does not believe Obama’s unilateral executive directives are legally defensible.

The last paragraph of Article II, Section 1 of the U.S. Constitution sets forth, “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Regardless of what one thinks about the morality and aesthetics of guns generally and gun ownership and gun possession particularly, each American should ask of him or herself and then be prepared, honestly, to answer the following question: “Shall I deign to honor this man, the President of the United States, who, having subscribed to the oath he has taken, would dare become a law unto himself?”