January 11 2016
As expected, President Barack Obama on Jan. 5 imposed regulatory changes to federal gun laws that will expand the definition of who qualifies as a firearms “dealer” required to conduct background checks, to increase FBI funding to speed up background checks, and to require gun owners to report lost or stolen firearms.
Undoubtedly, you know that. What you may not know is he didn't do it by executive order, but through “executive action.”
The difference? An executive order is an official, legally binding presidential mandate that commands federal agencies to initiate a specific undertaking while an “executive action” is, basically, anything the executive branch does.
In essence, Obama’s executive actions are directives—guidance memorandums—to the Bureau of Alcohol, Tobacco, Firearms and Explosives, the FBI, the Department of Homeland Security and the Department of Defense to respond to what he interprets as a political demand for action.
It’s a nuance, but one that precludes even the limited response that Congress and the Courts could have pursued had Obama issued his fiats by an official executive order.
“Issuing a guidance document with substantial fanfare is a way to create the impression of action and satisfy relevant constituencies,” writes Jonathan H. Adler in The Washington Post on Jan. 5. “To the typical, rationally ignorant voter, it may appear that the administration is doing something significant. And, insofar as Republicans complain and caterwaul about the administration’s actions, this purpose is more fully achieved.”
Maybe. Then again, maybe not.
According to a Jan. 7 CNN/ORC poll, while 67 percent of Americans surveyed support Obama’s executive actions, 57 percent don’t believe they will be effective in reducing gun-related deaths and 54 percent disagree with his use of executive powers.
According to the White House’s Fact Sheet, the changes are immediate, but don’t go into effect until they are finalized…whatever that means. The ATF, for instance, is still working on a rule to require background checks for those buying firearms through trusts, corporations or other legal entities.
The bottom line: Since the actions are not executive orders, Congress cannot simply pass laws to override them or fashion ways to defund them, nor can they be challenged in court—not, at least, until they are actually implemented.
So, until Obama’s executive action’s generate some actual action—beyond being immediate but yet unimplemented—there really can’t be a legislative or legal reaction.
Obama’s actions “demonstrate the president's apt political posturing on this issue. The president is staunchly anti-gun, but also sees this as an opportunity to rally his base and draw moderates to his team, in what is likely to be a difficult political year as a lame-duck president,” writes Hadley Heath Manning, health policy director at the Independent Women's Forum on Jan. 7 in U.S. News & World Report. “He might succeed in generating a political boost, but his gun control efforts are unlikely to yield benefits in terms of reduced crime.”