Just one day after the senate failed to pass the amendment to S. 649, which expanded the scope of background checks for gun sales, BuzzFeed broke the story that Vice President Biden told “stakeholders” on a conference call that the President will institute more executive orders “later this week.” Indeed, the President himself said in his presser on Wednesday that the Senate’s failure to pass S. Amdt. 715 was “just round one.”
Well, the President’s corner has just plugged the laceration above his eye, the ring-girl has stepped down, and the Bammer and The 2nd Amendment are ready to begin round two.
Presidents are no strangers to the courts. The courtroom doors are revolving doors for them. They are constantly going in and out, which is a little troubling since the country was founded on the idea of keeping them limited. Yet, they continue to push and stretch the boundaries of their limitations. As we prepare to see what executive action the Bammer is going to take on regulatory gun taking (stay tuned for my next column to see why I refuse to say silly things like “gun control”), let me offer some insight on the extent of Executive power so that incorrect beliefs can be dispelled and round two can be watched with a better constitutional understanding of what is—and might be—going on.
We all know that the President has no authority under the Constitution to make law—that’s Congress’s sole authority. However, there has been this little nuisance that has popped up in our history called an Executive Order. It is exactly what it sounds like—an order from the President. The Constitution itself has no affirmative textual grant of the device, but the power to create an order has been generally upheld as an inherent power of the Executive. But each order is a case-by-case basis.
In the spring of 1951, and during the meat of the Korean War, a huge labor strike began at most of the country’s steel mills. The strike threatened the national production of steel. As steel was needed for military armament, President Truman issued an executive order for the Department of Commerce to take possession of the mills in order to keep them running. The owners of the mills sued on the grounds that the President was exercising lawmaking authority without proper delegation from the Congress.
Truman’s administration argued that he was using his Chief Executive powers to avert a national catastrophe during wartime, and that the Constitution and the precedential acts of prior presidents permitted this. But the Court disagreed.
In a 6-3 decision, the Supreme Court ruled that seizure of the steel mills fell within Congress’s interstate commerce jurisdiction, and that Congress had not statutorily delegated any authority to the President to seize the economic properties in order to prevent work stoppages. In fact, Congress had rejected the proposal to give the President such authority when it enacted the 1947 Taft-Hartley Act.
Justice Hugo Black wrote the majority opinion for the Court, but it was Justice Robert Jackson’s concurrence that has been most relied on to figure out the boundaries of the President’s pen.
Jackson proposed a 3-part test to find the boundaries of the President’s power: (1) if Congress authorized the President’s actions, then “his authority is at its maximum”; (2) If the President acted in the absence of any congressional authorization in an area that Congress has power over, then there is a “zone of twilight” where the outcome is unsure, and the “actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law”; and (3) if the President acts in direct opposition to Congress’s desires, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of congress over the matter.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, at 634-39 (Jackson, J., concurring).
What we see then, in the fight between the Bammer and The 2nd, is that Congress plays either one of three roles: (1) it can be the shady character who injected lead into the President’s gloves before the fight by passing a law that would allow the president to extend his power over firearm regulation; (2) it can sit in the front row and silently watch the fight—hoping it isn’t sprayed with the occasional spit and blood; or (3) it can be the referee and specifically reject what the President tries to do by passing some sort of measure to restrain him. Of course, the third option is highly unlikely since it would necessarily require Congress to override a presidential veto—the Bammer would never agree to limit his own power (Taft-Hartley overrode Truman’s veto).
The big distinction for us, of course, is that Truman’s seizure was an economic taking, and we’re looking at a gun taking. And while President Obama cannot come out and directly confiscate firearms, it’s foreseeable that he will attempt to do so through regulations. Regulatory takings are unconstitutional under Supreme Court case law; however, regulating something to drive up the cost or make it extraordinarily difficult—but not impossible—to obtain is a different story (at least to my knowledge). Regulations are the secret tactic of any imperialist to take what he wants.
But my concern about Bammer vs. The 2nd is not so much his presidential power to sign an enforceable order (I think the Court would be hostile to any aggressive order pertinent to guns), but his war power.
The Executive’s power during wartime is virtually limitless, at least as far as we know through the limited case law. A prodigious amount of deference is given to the President when the country’s security is at stake. Indeed, constitutional rights, such as habeas corpus have been suspended and upheld because the right was suspended by the president during wartime. This is why Senator Paul’s filibuster was such a big deal and this is why I am a little concerned about the later rounds of Bammer vs. The 2nd.
Knowing the President’s desire for more power and his view as to why the Constitution is problematic, I have concerns as to what he’ll attempt to do with his power if it’s wartime. And I don’t mean war with Afghanistan, Syria, or some other yonder place.
President Franklin D. Roosevelt signed Executive Order 6102 during the great depression. The order criminalized the private “hoarding” (owning in mass) of gold coins, gold bullion, and gold certificates and required citizens to turn in their gold to the U.S. Treasury. This was a direct taking. But because of the national economic concern, the Supreme Court upheld the President’s power to do so. (The Court invalidated the order because it was missing the Treasury Secretary’s signature, but upheld the power. The order was eventually nullified by the Gold Reserve Act passed in 1934.)
So, if the Court will uphold the taking of private property, like gold, as well as the suspension of certain constitutional rights during wartime, it follows then that because firearms are both items of private property and a constitutional right, they could be legitimately confiscated under the right circumstances. Probably, war. And it should be carefully noted that “wartime” is a fuzzy concept that does not necessarily mean, under constitutional law, that Congress must issue a formal declaration of war. Hence, the fuzziness and breadth of the Executive’s power.
So, as I sit back and watch the fight between the Bammer and The 2nd, I raise my eyebrow at the constant barrage, constant posturing, constant use of victims’ families as props and propaganda, constant control of the narrative, constant vilifying of the NRA and other gun advocates and wonder: could it be possible that the President and his cronies are trying to kick the beehive? If the ideological and political battle gets heated enough and the pressure builds just right (see my article, Uh-Oh… The Physics of Gun Control) all it will take is one event—one gun advocate snapping—for “wartime” conditions to rise. When that happens, watch the Emperor’s pen finally sign the order we all know he is just itching to have in front of him.
Of course, whether or not American’s comply is a different story.