WASHINGTON, DC, January 9, 2013 — President Obama is a man impatient to do good. Saddled with a Congress in gridlock, too aloof to work with congressional leaders to break that gridlock, too proud to lead men and women who he considers beneath him, Obama finds himself incapable of governing a messy republic and encouraging Americans to make America a better place.
Unable to lead, Obama has learned the joy of ruling by decree.
In 2001, Rep. Luis Gutierrez (D-Ill.) introduced a bill to allow young people between the ages of 16 and 25 who entered the country illegally under the age of 16 to seek protection from deportation. His bill was dropped in favor of a more restrictive version, and Senator Orin Hatch (R-Utah) introduced a mirror version of the bill that would eventually become the DREAM Act.
The Act had bipartisan support, but it eventually sank on the reefs of immigration politics. By now Obama was president and supported the Act, but as he demonstrated during the creation of Obamacare, he had no stomach for engaging multiple sides in dialogue, though he was very good at lecturing people and calling it “bipartisan discussion,” or attempting to find a Republican who could be lured onto his reservation with a promise to include a pet provision in a bill and calling it “bipartisanship.”
In other words, Obama showed early on a dislike for leadership in a system where give and take is required. But he discovered something interesting. As chief executive, he could order his underlings to interpret the laws in particular ways, or simply to ignore enforcing them altogether. He learned to love the Executive Order.
Obama imposed his own version of the DREAM Act by decree. When he said that he couldn’t get Congress to agree on a sensible policy, he meant that he was unable or unwilling to lead. He was, however, able and willing to dictate.
Obama is hardly the first president to issue executive orders, nor has he issued the most. Many of them are relatively benign or arcane. He’s issued orders to adjust government pay rates, establish a White House council on strong cities, to provide an order of succession within the Department of Agriculture, and so on. None of his executive orders has been as dramatic as the Emancipation Proclamation, or FDR’s order to intern Japanese and Americans of Japanese ancestry during WWII, or Eisenhower’s order integrating public schools after Brown v. Board of Education.
On the other hand, he’s shown an unusual predilection to issue executive orders on controversial issues. Aside from his “DREAM Act Lite,” he issued an order to ignore the Defense of Marriage Act, another to be discriminating in enforcing anti-terror laws, and another to change enforcement of President Clinton’s welfare reform law. These all drew strong and furious objections, but Obama wasn’t forced to pay a price.
Now, according to Vice President Joe Biden, Obama contemplates executive orders on gun control: “The president is going to act. There are executive orders, there’s executive action that can be taken. We haven’t decided what that is yet. But we’re compiling it all with the help of the attorney general and the rest of the cabinet members as well as legislative action that we believe is required.”
That comment has created a lot of consternation. Does the President plant to issue an order to confiscate guns? Is he going to ban “assault rifles” by decree? Is he going to impose a national gun license requirement?
No, no, and no. Obama is clearly comfortable intruding into divisive issues with executive decrees, and his inability to bring warring sides together makes that the only way he can get the results he wants and which are so clearly good for America. If he can’t persuade us to listen to sweet reason and our better angels, he can compel us to obey under threat of force.
But there are limits. A president has considerable latitude to decide how his administration will interpret and enforce the law, but he can’t create the law. At least not as long as Congress and the courts retain at least a modicum of independence or guts and challenge his usurpations of their authority. A compliant court and a fearful Congress allowed FDR to trample the rights of hundreds of thousands of Americans in the greatest national shame since the displacement of the Indians and slavery, so lawless executive orders are possible.
Obama’s executive orders on gun control are likely to be limited to more aggressive enforcement of existing laws. NICS, the system for instant criminal checks, is grossly underfunded, and it doesn’t collect all the information on mentally unstable people from the states that it should. Obama could order a rearrangement of priorities to ensure that NICS works properly.
At the same time, he could order that criminals who lie on background checks are more aggressively prosecuted. Eighty percent of guns used in crimes are obtained illegally; the laws that are violated to obtain those guns could be more vigorously enforced.
Congress can overturn executive orders. There will almost certainly be no order to confiscate guns or ban certain weapons. That intrudes to clearly on legislative prerogatives and risks a confrontation with Congress and the courts that Obama would lose. Obama will do no more than he believes he can get away with. Some of what he does could be positively useful.
Obama’s use of executive orders, signing statements, and other instruments presidents use to circumvent or distort the law were considered abominable in the hands of George W. Bush. The price Democrats will pay for their careless use now is to make them less abominable in the hands of future Republican presidents. Pharaoh in “The Ten Commandments” used to say, “so let it be written, so let it be done.” A saying that Democrats should remember is, “what goes around comes around.”
Rather than looking for ways to bend and create law, the President should look for ways to more vigorously and faithfully enforce it. That would be an executive order we could be proud of.
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