Can We Talk Calmly About Obama's 'Executive Orders'?

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No president can do the job without them. Let's try to be clear about which ones are valid and which aren't.

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You may be perplexed about President Obama's recent actions aimed at promoting gun safety. One of the leading scholars of separation of powers, Peter M. Shane, has set out a calm analysis of Obama's actions here. The president signed three, not 23, executive orders, he notes. Shane's most important point is this: 

What executive orders cannot do is impose obligations or restrictions on the public, unless Congress, through legislation, has expressly or implicitly conferred authority on the President to do so. It is worth noting that none of President Obama's executive orders on gun violence do any such things.

The opposition has many criticisms of the specifics of Obama's actions. Fair enough; that's part of the ongoing debate about the proper regulation of firearms. But some on the right like to claim that "executive orders" in themselves are lawless.

If so, that would have come as news to George Washington -- who issued, among dozens of proclamations, eight executive orders of the kind we recognize today -- and to every president since. 

What is the president's job? He is the holder of "the executive power" and has the duty to "take care that the laws be faithfully executed." It would be childish to believe that statutes, once passed by Congress, somehow carry themselves out while the president greets Little League teams in the Rose Garden. New criminal statutes must be enforced; new conditional spending grants must be administered; new programs must be assigned to government departments for administration; new policies must be carried out by government employees on the ground. 

A president cannot do his job without issuing executive orders and other instructions to the executive branch. The question should be whether a specific one is justified by law. 

Sometimes the president will exceed his authority, and when he does, it's a citizen's duty to call him out. Obama's refusal to obtain authorization from Congress for the intervention in Libya was probably a violation of the Constitution. From what we can tell, the secret drone-strike program and the "kill list" of targets, generated within the executive branch, raise very serious constitutional questions.  

There's every reason to think that there will be more of these serious executive-power issues in Obama's second term. It's possible that, for the next two years at least, Obama will have to try to govern without a functioning legislative branch. It's a challenge, to say the least, and one that few presidents have faced. History suggests that the result will be increased executive power, simply because some things -- including paying the debts of the United States -- must be done no matter what. Already, for example, two highly respected academics, Michael Dorf of Cornell and Neil Buchanan of George Washington University, have suggested that the "least unconstitutional" response to a debt-ceiling standoff would be for Obama to raise taxes on his own authority. I am certainly not ready to go there, but Dorf and Buchanan are serious scholars. Their article illustrates that desperate constitutional times sometimes elicit extra-constitutional measures.

Right now the opposition is screaming that, for example, an order that federal agencies comply with the NICS Improvement Amendments Act of 2007 is somehow the equivalent of George W. Bush's order establishing military commissions. If we are heading into a true confrontation of the branches, a sane discussion of executive power is going to be important for the future of the Republic. We aren't off to a very good start.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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