Time was when Barack Obama, an instructor of constitutional law at the University of Chicago, was skeptical of American presidents’ aggressive use of executive power. In 2008, as a candidate for president, Senator Obama railed against President George W. Bush’s penchant for circumventing Congress.
Now, seven years into his own presidency, Obama is a master at executive action, pushing the envelope time and again when Congress won’t act – even after saying he’s done everything he can. Gun control is his latest mission, with new actions to be announced Tuesday, a televised town hall on the subject Thursday night, and gun violence expected to be a focus again in next week's State of the Union address.
One new measure would tighten the so-called “gun-show loophole" by requiring occasional gun dealers – such as those who sell at gun shows and over the Internet – to obtain licenses and conduct background checks on buyers. In remarks to reporters Monday evening, administration officials also laid out plans to boost enforcement of federal gun laws, including the hiring of additional FBI personnel to process background checks.
Some of Obama’s new gun measures, including an additional $500 million in federal funds to increase access to mental health care, require congressional approval.
But those enacted by executive order have the force of law – though they can be undone by the next president. And therein lies the rub for Obama: If he is replaced by a Republican, he is sure to see a raft of measures eliminated with a quick signature, on matters ranging from gun control to immigration to women’s reproductive health.
The large Republican presidential field has uniformly decried Obama’s aggressive use of executive power. On Saturday, front-runner Donald Trump vowed to “unsign” any gun control measures Obama enacts unilaterally.
“So he's going to sign another executive order having to do with the Second Amendment, having to do with guns,” Mr. Trump told a rally in Biloxi, Miss. “I will veto. I will unsign that so fast."
On Monday, Texas Sen. Ted Cruz – a Harvard-trained lawyer who has argued cases before the Supreme Court – promised on day one as president to "rescind every single illegal and unconstitutional executive action" by Obama. New Jersey Gov. Chris Christie, a former US attorney, called Obama a “petulant child” and a “dictator” over his planned actions on guns.
But the reality is that, whoever the next president is – the most conservative Republican or the most liberal Democrat – he or she is likely to follow his lead on use of executive authority.
“I suspect that everybody running for president will be aggressive in that light,” says Henry Barbour, Republican national committeeman from Mississippi.
Even if the Republicans sweep the 2016 elections in November – winning the White House and keeping control of both houses of Congress – the Democrats will still be able to block legislation they don’t like through the filibuster, or endless debate, which requires 60 votes to end. There’s virtually no chance Republicans can expand their 54 to 46 majority in the Senate to 60 to 40.
If a Democrat wins the presidency, Republicans are still likely to keep the House, if not the Senate, too, leaving Washington as gridlocked as ever.
Either way, Republican or Democratic, the new president’s legal advisers will surely be put through their paces to find ways to circumvent Congress and get things done.
Obama has shown that after one round of executive action on a divisive topic, and after saying he’s done everything he can, he’s willing to send his advisers back to interpret the laws even more permissively to allow them more leeway to come up with new ideas for action.
The best example is immigration. In November 2013, when Obama was interrupted by a heckler in San Francisco who demanded he stop all deportations, the president insisted he had done everything he could. His action to defer deportation for young illegal immigrants was the best he could do without congressional action, he said.
"We've got this Constitution, we've got this whole thing about separation of powers," Obama said. "So there is no shortcut to politics, and there's no shortcut to democracy."
By November 2014, Obama had changed his tune, and announced a plan to defer deportation for an additional 4 million people.
That initiative, on hold while under court challenge, would apply to 3.7 million undocumented parents of US citizens and legal permanent residents, plus another 300,000 young illegal immigrants brought to the US as children. Democratic front-runner Hillary Clinton has pledged to go even further on immigration via executive action if elected.
On gun control, after the Sandy Hook massacre of December 2012, Obama tried a two-track approach: executive action and legislation. Vice President Joe Biden led an interagency task force to come up with measures the president could take on his own; one month after the massacre, Obama signed 23 executive actions related to gun control.
The effort in Congress was less fruitful, as a bipartisan bill to expand background checks on gun buyers and ban assault weapons failed.
Until recently, Obama insisted he’d done everything he could on his own on guns. Massacres in Charleston, S.C., Roseburg, Ore., and San Bernardino, Calif. – the last one at the hands of a radicalized Muslim couple – have kept gun violence and domestic terrorism in the headlines, as have the daily statistics on gun deaths around the country.
To Obama, gun violence isn’t just a legal matter, it’s a moral issue and one of the scourges of our times. He has made clear that in his remaining time as president, keeping guns out of the “wrong hands” is a top priority. Though most of the recent, high-profile gun incidents have involved weapons that were legally obtained, Obama seems undeterred.
“What I asked my team to do is to see what more we could do to strengthen our enforcement and prevent guns from falling into the wrong hands, to make sure that criminals, people who are mentally unstable, and those who could pose a danger to themselves or others are less likely to get a gun,” Obama told reporters Monday after a meeting with Justice Department officials in the Oval Office.
Obama said his team made recommendations that are “well within my legal authority and the executive branch,” and also “ones that the overwhelming majority of the American people, including gun owners, support and believe in.”
Polls show expanded background checks have strong public support, though in the wake of San Bernardino, a majority of Americans now oppose a ban on assault weapons, according to the latest ABC News/Washington Post poll.