Why the President’s 23 Executive Actions on Guns Are Well Within His Power, Despite GOP/NRA Claptrap

Just listen to the gunloons whine. Some of them are already screaming impeachment. Why? Because President Obama used his presidential power to initiate whatever he could regarding guns. They were screaming for weeks before he actually issued these orders, directives and other actions, and they’re screaming even louder now.

There’s just one thing wrong with all of this. Obama did nothing illegal, and everything was well within the scope of his presidential power. He went to great lengths to avoid overstepping his bounds. The Constitution says the president “he shall take care that the laws be faithfully executed.” That means that, while the President can’t actually make laws, he is required by the Constitution to “execute” them.

The items on Obama's agenda that would require new law, he expressly asked Congress to address:

These are a few of the 23 executive actions that I'm announcing today, but as important as these steps are, they are in no way a substitute for action from members of Congress.  To make a real and lasting difference, Congress, too, must act, and Congress must act soon.  And I'm calling on Congress to pass some very specific proposals right away. First, it's time for Congress to require a universal background check for anyone trying to buy a gun. 

Second, Congress should restore a ban on military-style assault weapons, and a 10 round limit for magazines.


And, finally, Congress needs to help, rather than hinder, law enforcement as it does its job.  We should get tougher on people who buy guns with the expressed purpose of turning around and selling them to criminals.  And we should severely punish anybody who helps them do this.

Since Congress hasn't confirmed a director of the Bureau of Alcohol, Tobacco and Firearms in six years, they should confirm Todd Jones, who will be — who has been acting and I will be nominating for the post.

See? He’s carefully ceded territory on the gun control issue to Congress, and given them their due with regard to their Constitutional power.  Which is exactly he opposite of what the right wing gunloons are complaining about.

Let’s look at the 23 executive actions today (they're not all executive orders), and see which ones the right winger might possibly complain about.

1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.

This one’s interesting, since the Republican Congress passed laws that forbade the ATF from compiling certain types of statistics and data for the background check database years ago.  One specific example is the Tiahrt Amendment, which prohibits ATF from releasing information from its firearms trace database to anyone not affiliated with a law enforcement agency or prosecutor. And they can only have the information in connection with active criminal investigation. The information is even inadmissible in a civil lawsuit.  Therefore, it's not possible to make such data available for background checks.

This action is clever, in that it requires all other federal agencies to share data they already have with the background check system. It does an end around. In the meantime, we should demand that Congress open up and allow all ATF data into the federal background check system. 

2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.

3. Improve incentives for states to share info with the background check system.

These are related to the first action. Since they can't get info from ATF, they need as much as possible from states. It's also an attempt to figure out a way that states can get around HIPAA and other laws,  so that they can contribute more information about physical and mental health status to the background check system. Consider that the little jerk who shot Gabby Giffords was forbidden from returning to the local community college without a doctor’s clearance, but he had no problem getting a gun. If colleges have access to such information, why shouldn't the background check system? Even if you manage to pass a universal check system, it won’t work until as much relevant data as possible is available.

4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.

Unless you can define legal categories of people who shouldn’t have guns, there is little reason to conduct universal background checks. Also, the current background system, which even most gunloons are fine with these days, will be insufficient if it doesn’t contain enough information to determine who’s breaking the law.

There are already numerous categories of folks who aren’t legally allowed to own a gun. But in order to effectively enforce the law, it must be possible to identify those who fall into each category.  That requires clear definitions and clear criteria for those definitions.  So, this action intends to clarify definitions so that the law can be enforced.

5. Propose rulemaking allowing police to run a full background check before returning a seized gun.

Obviously, this can’t be illegal. If a gun has been seized for a legal reason, such as arrest or as a result of the domestic dispute or something similar, this would simply allow police to run a background check before returning the gun. This should be common sense.

6. Publish a letter from ATF guiding federally licensed gun dealers on running background checks for private sellers.

The gunloons are screaming about this one, but this would simply allow for advising federally licensed gun dealers to do background checks for private sellers who wish to do so. As of right now, such a thing would be voluntary. Some gun owners might want to screen their buyers, if they suspect something is up, or they just don’t know the person. Such an act would also largely shield private gun sellers from liability if one of their guns is used in a crime.  In short, it doesn’t require private sellers to conduct background checks; it merely makes the opportunity available.

7. Launch a national safe and responsible gun ownership campaign.

Once more, nothing requiring anyone to do anything. Simply making information available to people. Doesn’t the NRA claim they do this much of the time?

8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).

Asking the CPSC to make sure such safety devices work as advertised? Is there anything wrong with this? They do it with toasters; why not gun locks and safes? 

9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

This is another one that may be toeing the line slightly, but why shouldn’t law enforcement find out where these guns have been? They may uncover some other crimes in the process, such as prohibitions on selling guns in certain states, or in another state without a federal firearms license. Congress passed those laws at some point; all Obama’s asking anyone to do is enforce the law.

10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.

Once again, this doesn’t mandate that certain agencies collect data, just that the Department of Justice analyze the data available and make the report available to police.  Shouldn’t such information be useful in investigation of gun crimes? And since gunloons are always demanding that the government “enforce the laws already on the books,” shouldn’t they be glad when the government does just that?

11. Nominate an ATF director.

Obviously, there’s nothing illegal about this. There hasn’t been an actual ATF director since 2006. Even Bush couldn’t nominate one the gun lobby would accept, and things got worse under Obama. Obama had a difficult time even finding someone who wanted the job badly enough to put up with the NRA opposition, and didn’t nominate anyone until November 2010, when he nominated Andrew Traver, who’d been with the ATF since Reagan was president.  Predictably, Republicans blocked him.

12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.

13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.

Obviously, it can’t be illegal for the President to recommend that everyone involve in shooting situations be properly trained. And how could any “crime fighting” gunloon have a problem with the above two actions?

14. Issue a Presidential Memo directing the CDC to research causes, prevention of gun violence.

The ATF is not allowed to share its research with anyone, but there is no law preventing the CDC from doing so. Another end around, and not at all illegal. gun violence is usually against the law, unless it’s self-defense. Of course the president can look into ways to enforce the law.

15. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies.

How can it be illegal for the President to ask that the Department of Justice to investigate possible ways to make guns safer to use and then report on it?

16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

I’ve already had a gunloon screaming at me about these. He actually claimed that Obama was “signing (an) Exec(utive) Order for doctors to report to government on patient guns…” Of course, that’s the opposite of what it does.

They’re Executive Memoranda advising doctors, like mental health professionals, that they’re not prohibited from asking their patients about guns in their homes. It doesn’t order them to ask the patient and then report the answer to law enforcement, although I’m pretty sure all sane people would think that’s a good idea. The Aurora shooter, for example, had all sorts of psychiatric records; might have been nice if doctors knew he was buying an arsenal over the Internet and could have advised law enforcement, dontcha think?

18. Provide incentives for schools to hire school resource officers.

19. Develop model emergency response plans for schools, houses of worship and institutions of higher education.

These two are obviously preventive measures, and can’t possibly violate any limits on executive power. Again, violent crime, as occurred in Newtown is against already existing law. Arranging to help communities plan for an attack certainly can’t be illegal, even to a gunloon. Right?

20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.

22. Commit to finalizing mental health parity regulations.

23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.

The last four are certainly within the scope of executive power, because they deal with how mental health issues under the Affordable Care Act and Medicaid, and are intended to help make mental health screening and treatment more comprehensive and complete. It’ll be difficult to keep guns out of the hands of the mentally ill, if we can’t identify them. And it’s currently against the law for the mentally ill to get a gun.

Basically, the measures President Obama has taken do not solve all of the problems. But they do create a framework for solving some of them. We have laws on the books that prohibit gun ownership to a number of categories of people. They are forbidden from owning firearms because they are considered a danger to society.  These measures do not change one law; they simply seek to make enforcement of existing laws easier.

So, when the gunloons on the right howl, ask them to tell you which ones of these measures violate the limit on presidential power. And when they give you example, feel free to laugh.

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