We learned on Tuesday that Barack Obama, in his final year of office, will continue to test the boundaries of executive authority in order to break through congressional inertia. Americans have already witnessed the president’s instant impact on issues like LGBT discrimination, climate change, and immigration. The result has been at times sweeping, like changing the status of millions of undocumented immigrants and pushing the power sector to cleaner sources.
Now Obama has taken action on gun violence. At the time of the Umpqua Community College shootings in Oregon last fall, Obama said he asked his team “to scrub what kind of authorities do we have to enforce the laws that we have in place more effectively to keep guns out of the hands of criminals.” What he got after that scrubbing was a set of new executive orders that the White House knows fit comfortably within the president’s legal boundaries, building on the 23 actions he signed after the Sandy Hook shooting.
Staying safely within his executive limits also means that the order he signed Tuesday will only modestly improve gun-law enforcement. Even many Second Amendment absolutists are untroubled by the new rules. Gun reformers, while pleased that the president did something, are left with a troubling question: Was this really all Obama could do? More important, where can his successor—if it’s a Democrat—go from here?
Obama’s order is certainly no radical departure from traditional executive authority. (Even Republicans have pursued executive action on guns, like President George H.W. Bush’s ban on foreign-made assault rifles). Obama makes a number of incremental changes, the most significant is a broadened definition of who is “engaged in the business” of selling guns from beyond traditional brick-and-mortar licensed dealers to individual sellers. This wouldn’t close the so-called gun show loophole allowing guns to pass among private sellers without a background check, but it effectively narrows the pool of unlicensed dealers that can. Obama’s other measures include requesting that Congress provide more funding for addressing mental illnesses, assigning more FBI agents to gun crime oversight, and removing privacy health rules that let the mentally ill pass a background check.
“He’s putting tools in place to reign in the most dangerous private sellers,” Johns Hopkins Center for Gun Policy and Research Director Daniel Webster told me yesterday after Obama’s announcement. “He’s trying to move federal gun law enforcement into the 21st century.”
If you overlook the expected warnings from some of the right that Obama is getting ready to confiscate guns, a surprising number of conservatives consider the changes to be tepid. Heritage Foundation’s legal expert, John Malcolm, thinks the actions “are not controversial or problematic from a legal stand point,” and that some of the changes are even welcome. Jonathan Adler, a law professor at Case Western Reserve University who led the King v. Burwell Supreme Court challenge to Obamacare, told The Plum Line’s Greg Sargent that the order redefining who’s in the business of selling guns “doesn’t really capture anyone who should not have already been complying with relevant requirements,” adding “this particular step is modest.”
“This is what they’ve been hyping for how long now?” National Rifle Association official Jennifer Baker asked the New York Times. “This is the proposal they’ve spent seven years putting together? They’re not really doing anything.”
Obama may have fallen short of his foes’ worst fears, but that’s because he’s staying well within his legal limits. The president’s executive authority is far more constrained when it comes to guns than in the areas that have seen more radical change (the Environmental Protection Agency, for example, has wide leeway from Congress to regulate harmful pollutants). The next Democratic president will face the same restrictions.
Adam Winkler, a professor in American constitutional law at the UCLA and author of Gunfight, told me that “the law is more clearly written” on guns than on other issues—leaving chief executives and federal agencies less discretion and room to interpret existing law.
“The president can tinker at the edges and at the margins,” Winkler says, but not much more. “Obama’s action on immigration wasn’t that complicated; they were just broad because they affected a large number of people. He has discretion on who to prosecute. With regards to the gun situation, his hands are tied.” The gun-show loophole, for instance, is written into federal law in the Gun Control Act of 1968 and the Brady Handgun Violence Prevention Act of 1994.
Experts credit the NRA’s persistent lobbying over the years. “There are a number of restrictions in place that do limit executive action,” says Center for American Progress gun-law expert Arkadi Gerney. The NRA “has been successful” in attaching riders into appropriations bills to limit oversight from federal agencies, handicapping their ability to share background-check data and the Centers for Disease Control’s ability to research gun violence.
That is not to say Obama’s successor will have no options at his or her disposal. There’s still some room to strengthen federal enforcement, a process Obama has only just begun; Gerney suggests, for instance, that the president could fold the Bureau of Alcohol Tobacco and Firearms under the Federal Bureau of Investigation to improve coherency and communication on background checks. This would eventually need congressional approval through the budgetary process, but the president can take the initiative.
Hillary Clinton, the Democratic frontrunner, unveiled proposals last fall that are nearly identical to Obama’s actions Tuesday. Bernie Sanders backed Obama’s executive approach this weekend, but hasn’t detailed what more he would do in office. Sanders, Clinton, or another future Democratic president could push the limits still further by looking to what Obama hasn’t addressed—though the possibilities are mostly modest, like including non-fatal gun violence crime in FBI data to fill in gaps of public understanding on the effect of gun laws.
Until Congress is ready to act—and no one can say when that day might come—the prospects for system-wide reform are bleak. That’s why Obama emphasized the long arc of history yesterday, likening the push to rein in guns to long-haul movements that ended slavery, got women the vote, and won rights for LGBT Americans. Webster is among those who take heart from Obama’s executive actions. “If I would try to evaluate the impact of it once this goes into effect, would I be looking for a really big change in gun violence? The answer is no. However, I do think it’s meaningful and it has a measurable effect.”
The greater significance of Obama’s actions might be more symbolic than substantial. The Republican presidential field is apoplectic. And by taking a stand on guns, Obama has injected the discussion into the 2016 race more than gun-control activists ever could.