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Executive gun ‘order’ easier said than done

Congress carefully guards its authority

- The Washington Times - Thursday, January 10, 2013

The administration is eyeing unilateral steps on gun control, but analysts said there are few things President Obama can do on his own because gun control is one area where Congress has jealously guarded its power to make the laws.

In many areas, Congress writes broad laws but gives the executive branch wide discretion to write rules and regulations. Not so with guns.

"The problem with gun control is that Congress has been extraordinarily explicit," said John Hudak, a scholar on executive power at the Brookings Institution. "When gun-control legislation is passed, it is usually very detailed in what Congress intended and it is usually very detailed in the barriers it sets up for the executive branch. That limits presidential authority to use executive power because there is little discretion."

Vice President Joseph R. Biden, who is leading the White House task force on gun control, said this week that Mr. Obama is looking at "executive orders, executive action" that he can take without having to depend on Congress, which has blocked stricter gun control for nearly two decades.

Constitutional analysts and gun specialists said there may be some room for the administration to act alone to tighten the instant background checks by asking states to pony up more data.

But they said anything broader, such as banning types of guns, ammunition or magazines, would have to come from Congress.

Alan Korwin, a gun rights advocate and author of books on gun laws, said Congress has not given the president the power to tighten the laws on his own.

"Nor should, nor can, they. They are not empowered to," Mr. Korwin said. "In other words, the people have not given Congress the ability to give the president the power that is not spelled out in the Constitution."

Mr. Korwin, though, added that Congress has shown a willingness to give away its powers on some thorny issues.

The current debate erupted after a shooting rampage killed 20 children and six adults at Sandy Hook Elementary School in Newtown, Conn.

On Thursday, Mr. Biden met with gun rights groups, including the National Rifle Association, and said his task force will release its recommendations Tuesday. Retailers such as Wal-Mart, Dick's Sporting Goods and other stores that sell firearms met with Attorney General Eric H. Holder Jr. in the late afternoon Thursday.

Mr. Biden said a consensus is developing around proposals such as banning high-capacity magazines and imposing tighter background checks, though NRA officials accused him of having already made up his mind and using them for a predetermined dog-and-pony show.

"We were disappointed with how little this meeting had to do with keeping our children safe and how much it had to do with an agenda to attack the Second Amendment," the gun lobbying group said. "While claiming that no policy proposal would be 'prejudged,' this task force spent most of its time on proposed restrictions on lawful firearms owners — honest, taxpaying, hardworking Americans."

In the wake of the shooting, Mr. Obama said he would "use whatever power this office holds to engage my fellow citizens, from law enforcement to mental health professionals, to parents and educators, in an effort aimed at preventing more tragedies like this."

Mr. Biden went further this week, meeting with shooting victims and their families and saying, "There are executive orders, executive action, that can be taken."

The White House declined to elaborate on what Mr. Biden meant, but analysts said one area would be to strive for better records in the instant background check system for gun purchases.

Mayors Against Illegal Guns, in a report two years ago, said the president can issue an executive order mandating federal agencies to provide all of their data to the background check system, and could do a better job of pushing states to provide more records. But the group said boosting penalties on states that don't comply would have to pass Congress.

Mr. Hudak said the president will most likely step up the enforcement of laws already on the books — a move that requires no new approval from Congress, and that gun-rights groups regularly call for too.

He said that Mr. Obama also could make a recess appointment to tap a like-minded director for the Bureau of Alcohol, Tobacco, Firearms and Explosives, who could then make curbing gun violence a top priority.

A more risky possibility is for Mr. Obama to test the limits of what he deems as vague parts of laws already on the books — a move that likely would prompt a clash with Congress and lead to court challenges.

William G. Howell, a professor at the University of Chicago who has written widely on separation of powers among the branches of government, said that the softening of public opposition to more gun-control laws in the wake of recent shootings could encourage Mr. Obama to try to test the limits of a unilateral edict.

"It seems there may be an opportunity for him to act that he did not have three years ago," Mr. Howell said. "While Congress may lack the votes to enact new gun control legislation, it may also lack the votes, or the will, to amend or overturn something that the president does on its own."

The biggest hurdle for Mr. Obama would be to try to impose more restrictions on what guns can be sold.

The president said he supports renewing the ban on military-style rifles, known as the assault weapons ban, which expired in 2004, and also said he wants a ban on high-capacity magazines.

But getting Congress on board would be an uphill battle.

Mr. Obama has not been shy about using executive authority when he thinks his action would be popular or politically advantageous.

He has allowed states to opt out of some requirements under the No Child Left Behind education law, and said he would issue waivers from the work requirement under the welfare-reform law.

Last year, he said the Homeland Security Department would use prosecutorial discretion to stop deporting young adult illegal immigrants and would stop targeting most other rank-and-file illegal immigrants.

He also has been sued over his use of the recess appointment power after he made several appointments last year, even when Congress considered itself in session.

David Sherfinski contributed to this report.

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