Immediately after President Barack Obama announced various executive actions his administration is taking to combat gun violence in the United States on Tuesday, coverage and analysis of his policy proposals flooded the news. While most coverage has focused on the content of the policies announced, it’s also important to consider how the format of the policies—announced via executive actions, rather than executive order—influences their substance. To better understand the implications of Obama’s proposals, Generation Progress turned to Michele Jawando, Vice President of Legal Progress for the Center for American Progress.
Jawando is an expert on the Supreme Court and the judicial system, democracy and voting, civil rights, criminal justice and civil liberties, race and ethnicity, women’s rights, and religion.
“It’s incredibly important to recognize that what the President did yesterday was announce executive actions on guns as opposed to executive orders,” Jawando explained. “Executive orders have the force of law. Upon the President issuing or signing an executive order, an administrative process begins that directs a cabinet secretary to do a specific thing. That order is then put into a rule-making process, finalized, and published with the weight of the force of the law.”
Executive orders and executive actions are two different procedures. Yesterday, Obama outlined executive actions. “What he did is essentially put forth his advisory—wish-list if you’d like—of things he would like to happen. He issued guidelines about how rules that are written on the books or being calculated should be interpreted.”
The executive actions Obama announced yesterday are divided into four goals, including keeping guns out of the wrong hands through background checks, making communities safer from gun violence, increasing mental health treatment and reporting to the background check system, and shaping the future of gun safety technology. Approximately 33,000 Americans are killed by guns each year. Young people are particularly prone to gun violence; 54 percent of people killed with guns in 2010 were under 30.
Although executive actions are essentially just suggestions or clarifications, some of the policies President Obama set forth yesterday to reduce gun violence were already in the works. For example, one of his actions to increase mental health treatment and reporting to the background check system was to include information from the Social Security Administration (SSA) in the background check system about beneficiaries who are prohibited from possessing a firearm. The SSA, however, is already in the process of ensuring that appropriate information is reported to the National Instant Criminal Background Check System. Obama simply put his support behind an initiative that has already been started.
Another example of this lies with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The President’s stated goal is to make communities safer from gun violence. One policy the president suggested to this end is to require background checks for people trying to buy some of the most dangerous weapons and other items through a trust or corporation. This idea is not a directive or an order from the president, but rather supports an existing effort by the ATF. Currently, the ATF is finalizing a rule to require background checks for people trying to buy some of the most dangerous weapons and other items through a trust, corporation, or other legal entities. The ATF was already doing this before the President included it in his actions.
The President also included a Presidential Memorandum within his executive actions. The memorandum directs the Departments of Defense, Justice, and Homeland Security to prepare a report outlining research and development strategies and continuously review the availability of smart gun technology on a regular basis.
“Is it a law? It is not a law, but it is the President of the United States asking a cabinet secretary to do something,” Jawando said. “They’re going to do it.”
Ultimately, the President has not circumvented Congress to pass laws on his own. Such actions would be unconstitutional and impossible from his seat in the Oval Office. What he has done is identify and implement ways to immediately address gun violence without passing new legislation.
“We have the power right now, without passing a law, to clarify the laws that already exist,” Jawando said. “This was the President saying, ‘There are things we could do right now and we should look into them.’”
Agencies like the ATF, FBI, and Department of Health and Human Services use very meticulous administrative procedures when they are rule-making. There’s more “outside of School House Rock to how a bill becomes a law,” Jawando explained. “What the President is saying is, ‘Not only do I want that process to continue but let me give you some ideas and guidelines about how I want that rule to look like when it is complete.’”
Although many options were proposed in the President’s executive actions, Congress still has room to move if it wants to. “We all know Congress is broken,” said Jawando. “Eighty percent of gun owners support background checks, so the fact that Congress didn’t have the courage to move forward after Newtown and [the subsequent] shootings shows that Congress isn’t serious about fixing these problems; the President is showing that he is.”