January 18 2013
Republican senator Ted Cruz of Texas recently said that President Obama’s gun control proposals, including 23 Executive Orders (although he apparently signed only three - see proposals here), were not only bad policy but they were also unconstitutional. We have heard many arguments about how gun control measures don’t work, but this also presents an opportunity to examine the President’s response through the lens of our Constitutional rights and his Constitutional authority.
Victor Davis Hanson recently showed that our arguing after the tragic abuse of guns in an incident like Sandy Hook Elementary School necessarily pits our right to bear arms under the 2nd Amendment against our right to free speech under the 1st Amendment. On the one hand, many Americans believe that gun ownership, while important, can still be limited and moderated for “reasonable” or “necessary” use depending on one’s definition. On the other hand, we might limit access to excessively violent T.V. shows, films and video games in an attempt to affect the root cause on which certain individuals are dangerously prone to act.
We know that our rights to gun ownership and speech both face reasonable limitations which are rooted in deliberative engagement with our communities, but what restrictions are in fact proper? How far can the President go? The Constitution serves as a guide, not only for our individual rights but also the President’s legitimate authority.
President Obama faces limitations too. Many presidents have issued executive orders in American history, although many fewer were issued during the Founding era and some presidents have issued many more than others. What really matters isn't the overall number, but whether any of them were illegal or improper.
A determining factor in the success of the President's executive orders on gun control is a famous 1952 Supreme Court case, Youngstown Sheet & Tube Co. v. Sawyer, where the Court held that even during the Korean War, President Truman had overreached his executive authority by forcing steel mills to maintain operations, thus preventing a strike.
A controversial but famous concurring opinion by Justice Robert Jackson stated that depending on the circumstances, the president’s power may only be supported by any remainder of executive power after subtracting Congress’ power over the subject. Jackson stated: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”
In its support of the design of the separation of powers enshrined in our Constitution, Youngstown established the model whereby the president has either clear authority; somewhat vague authority (the famous “zone of twilight” between the President and Congress); or very little authority since Congress may have already legislated on the issue at hand. It will be interesting to see how the jurisdictional struggles on gun control, and thus our rights, play out between President Obama and Congress.