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A Legal Explanation of What President Obama did in His Plan to Reduce Gun Violence

A lot has been made of the President’s recent plan to prevent gun violence.  Some claim that the President is overstepping his constitutional powers by ordering more restrictions on the availability of guns and some claim that the President should enact his own bans such as a ban on assault weapons and the institution of limits on magazine capacity.

The truth is the President hasn’t really overstepped his bounds when it comes to his power as the President of the United States.  Nor has he tightened many of the gun laws that people want tightened.  Because the issue is so important, I think both sides of the argument could use a little background and a brief summary of how the legal side of how what the President is trying to do works.

The president of the United States essentially has two main functions under the Constitution.  He/she is the commander in chief of the military and he/she executes the laws of the land. The president doesn’t have law making powers.  Any law making powers he/she has are limited to recommendations to Congress of what laws should be enacted and he/she can veto those that the president believes should not be enacted.

The President’s plan to reduce gun violence falls under his power to execute the laws of the land.  Executing the laws of the land means the president has the obligation to enforce the laws of the land.  The president enforces the laws of the land through government agencies.  Agencies are essentially the workforce of the president.  Each agency has an individual(s) who acts as the boss of the agency and most of those bosses report to the president either directly or indirectly.  That’s probably the simplest way to describe the relationship between agencies and the president without getting into complex analyses of constitutional law and administrative law.

The president’s ability to issue executive orders falls under the power to execute the laws of the land.  Any orders made by the president must stem from either an act of Congress or from the Constitution itself.  For instance, the president cannot just decide he’s going to issue an order calling for everyone to purchase a blue car.  Such an order would not come from any act passed by Congress, nor does the Constitution grant the president the power to issue such an order.  If the president issued such an order it would be struck down by the judicial branch of the government as unconstitutional.

What the President did when he submitted his plan to reduce gun violence to the American people was tighten regulations within agencies and he pleaded for Congress to take certain steps of its own to reduce gun violence.  For instance, the President issued a Presidential Memorandum to agencies requiring them to identify relevant records and make them available for background checks.  That was a permissible act by the President.  It was contained within the agencies he controls and it did not extend beyond any powers the President has under the Constitution or acts of Congress.

The President also pled with Congress to pass legislation that closed all loopholes that allow purchasers to bypass the background check.  That would include requiring private citizens to run background checks before transferring guns to new owners.  And in the meantime, the President has asked private owners to voluntarily run background checks before transferring guns.  Both of those steps were constitutional steps taken by the President.

There are a series of these types of steps in the President’s plan.  And in the end the plan doesn’t really do all that much to curb gun violence in America, but that’s not really the President’s fault.  He’s limited in what he can do since he is not a law maker.

So for all those who believe the President has overstepped his bounds, take a step back and realize that not much changed when the President issued his plan and understand that Congress will be the body of government making those types of changes.  The same goes for those who want tighter gun regulations–take a step back and understand that the responsibility to make the changes you are seeking lies with Congress.

Given the recent approval rating of Congress, that little dose of reality is probably bad news for everybody however.

Photo Credit: Flickr

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