Yesterday, Congress passed a series of bills to promote gun control and mental health. Among other things, the bills aim to remove “unnecessary legal barriers…that may prevent states from making information available to the background check system,” to “give law enforcement the ability to run a full background check on an individual before returning a seized gun,” and to decide what things shall count as “essential health benefits” (including potential mental-health benefits) “within [Obamacare’s] exchanges.”
Of course, it wasn’t actually Congress that passed any of these things through the constitutionally prescribed legislative process. It was President Obama who decreed them via “executive actions.”
Our legislator in chief also declared that he has hereby unilaterally decided to “provide incentives for schools to hire school resource officers”; to “provide law enforcement, first responders, and school officials with proper training for active shooter situations”; to use federal tax dollars to “launch a national safe and responsible gun ownership campaign”; to use federal tax dollars to “develop model emergency response plans for schools, houses of worship and institutions of higher education”; to direct “the Centers for Disease Control to research the causes and prevention of gun violence”; to “improve incentives for states to share information with the background check system”; and to “clarify that [Obamacare] does not prohibit doctors [from] asking their patients about guns in their homes.”
Any president’s authority to issue executive orders is limited to issuing guidance to those serving beneath him in the executive branch, in order to make sure that they are helping him to fulfill his constitutional duty to “take Care that the Laws be faithfully executed.” The authority plainly does not extend to making law, a power that the very first line of the body of the Constitution vests squarely in the legislative branch. Then again, the former constitutional law lecturer who now heads the executive branch has stated repeatedly that, in direct contrast to our Founders and Lincoln, he believes in a “living Constitution” — which means all bets are off. If the Constitution’s powers are fluid, not fixed, then the separation of powers are fluid as well.
None of this should be overly surprising from a president who, seeking to give himself a leg up in the election, unilaterally decided to stop enforcing existing deportation laws as they apply to those under 30; has issued “recess” appointments when the Senate wasn’t in recess; has violated laws ranging from the legal deadline for releasing his own budget to the legal requirement contained in his own “stimulus” that his administration release regular reports on its results; who implemented an illegitimate demonstration project to delay Obamacare’s highly unpopular Medicare Advantage cuts until after the election; who has frequently chosen not to enforce federal marijuana laws; whose administration, seeking to avoid further charges of crony capitalism, reportedly told UnitedHealth Group to violate federal law by not reporting a politically toxic purchase to the Securities and Exchange Commission until after the election. The list goes on and on.
The most important duty that the president has under the Constitution is the one that we most often take for granted: his duty to faithfully executive the laws. If he fails to execute the laws as passed by others, or if — under the guise of executing those laws — he effectively makes law himself, then he violates the trust that the American citizenry has placed in him and undermines our constitutional structure. At such moments, the only defenses are an attentive citizenry, press corps, or Congress. Let’s hope one or more of these emerges in Obama’s second term.