After all the hoopla about President Obama unilaterally changing the nation’s gun laws, the executive order he plans to promulgate this week doesn’t amount to much. The order, which will be announced sometime this week and then promoted on a prime-time town hall broadcast on CNN on Thursday night, will increase the number of small-scale gun sellers that will be required to get federal licenses and thus be forced to conduct background checks on buyers. An executive order that will tighten the rules about reporting lost or stolen guns will also be promulgated. But while these new regulations will make the lives of a number of honest citizens who collect or sell firearms as a sideline or a hobby more difficult, they won’t do a thing to prevent mass shootings. Nor will they do a thing to prevent terrorists from carrying out attacks — the country’s main domestic security concern — in the United States.
President Obama’s urge to remain in the spotlight as his presidency enters its final year is part of the rationale for this move. As such, legacy issues rise in importance, and the president certainly views gun control as just such a topic. He has jumped on his gun control hobbyhorse every chance he has gotten in recent years. Even when the incidents in question had little or nothing to do with the availability of guns, such as the San Bernardino terror attack, that didn’t prevent him from trying to spin the event as somehow yet another excuse for more legislation restricting gun rights.
But the broader issue here is the same as with Obama’s executive orders on immigration: one-man government versus the Constitution.
The president has consistently defended his decision to change the laws regarding immigration as well as these new ones regarding guns as being somehow needed because the Congress failed to do its duty. In his view, Congress needed to pass legislation reforming the immigration process and providing a path to legalization and citizenship for the more than 11 million illegal immigrants already in the country. Similarly, on guns, the president says he has given Congress its chance to increase the number of background checks being performed by the federal government and to make the process of legally purchasing a firearm more onerous.
But Congress failed to act as he advised in either case. Immigration reform passed the Senate but failed in the House, a result that was in no small measure, the result of Obama’s threats of unilateral acts that made Republicans believe he couldn’t be trusted to enforce stricter border security measures as well as opening the gates to the illegals becoming citizens. On guns, both bodies refused to take his advice. So, he and his supporters reason, that justifies the president acting on his own to do what he thinks is right.
One can make arguments for the president’s positions on both immigration and guns though I believe both are dead wrong. Offering what amounts to amnesty for illegals without first figuring out a way to prevent more illegal immigration offers no solution to the problem. Enacting more gun laws won’t stop mass shooting, but supporters of gun rights are correct when they see the president’s “common sense” regulations as merely the thin edge of the wedge in a dishonest effort to repeal or reinterpret the Second Amendment.
Going again down the executive order path as 2016 begins is wrong for reasons that transcend the falsity of the president’s justifications for his positions. Put simply, the Obama administration is behaving in an extralegal fashion that puts the basic constitutional structure of American government in jeopardy. It has yet to be seen, as our Noah Rothman predicts, whether Democrats will ultimately regret this if a Republican is elected to the White House this November and seeks to play the same game. But this is more than a matter of partisan tit-for-tat as we envision future administrations rescinding their predecessors’ laws and unilaterally enacting new ones of their own.
The Founders of this Republic sought to create a form of government that was centered on laws, not the personalities that might be elected to high office. The Constitutional struggles of the English Civil War and the Glorious Revolution were still relatively fresh in their minds as they pondered the perils of one-man government. To prevent future tyrants or the rule of mobs, they created a structure of checks and balances that allowed Congress and the executive a vital role to play in the enactment of new laws. That process is messy, slow and cumbersome because it is dependent on arriving at a consensus between large numbers of disparate figures who must find a way to work together. It involves compromise as well as a desire to persuade friends and foes to vote for any bill rather than the imperative to obliterate all opposition.
For all of President Obama’s many gifts, these are skills and qualities that he lacks. Much like some of his more adamant opponents on the right, Obama’s version of democratic discourse is to dictate the terms of surrender to his critics and then to wait impatiently for them to acknowledge defeat. Thus, when the Republican-controlled Congress that was also elected by the people exercised their right to decide what the laws of the land should be and turned him down, Obama did not accept defeat with grace. Rather than follow the advice of the founders and to look to democratic means to change the outcome, the president has looked to his own power as a way to circumvent Congress. The results are orders that effectively grant amnesty to up to five million illegals and now to enact gun restrictions that Congress has similarly refused to enact.
The courts have correctly stymied the president on immigration. His gun rules, which are far less consequential, may remain on the books, at least as long as he remains president. But in doing so, the president has chipped away the separation of powers in a manner that moves us farther away from the intention of the Founders and any coherent concept of the rule of law. It doesn’t matter that Republicans may rescind his orders and issue ones that conservatives will like better. The danger here is of establishing a truly imperial presidency that will gradually lessen the ability of any Congress, no matter which party runs it, to decide the nation’s laws. If we have “evolved” to the point where a president may make any law he likes even if Congress has said no, we are no longer the same republic created at the 1787 Constitutional Convention in Philadelphia.
Like a Roman consul or dictator, Obama may think he is behaving within the political norms of the day. But American presidents, even popular and powerful ones, are not supposed to be benevolent despots. That’s why no one, no matter their party or their views on immigration or guns, should be cheering this week. Democracy is frustrating, especially when like President Obama, you believe yourself in the right and your opponents always in the wrong. But a government run by one man issuing executive orders is neither a republic nor a democracy. It is despotism even when, as with this week’s gun orders, the stakes seem very small indeed.