Obama, Gun Control, and the Limits to Executive Action

President Obama is expected to formally announce today that he will pursue executive action design to expand background checks on some guns purchases. Obama’s decision has been described by media outlets as a way of sidestepping a Congress that has opposed enacting more stringent gun control legislation. Predictably, the President’s decision to act “unilaterally” has provoked the ire of Republicans, particularly those running for president, who are unanimous in condemning Obama’s decision as an excessive exercise of presidential power. In a not uncharacteristic assessment, New Jersey Governor Chris Christie complained on Fox News Sunday that Obama “is a petulant child… because quite frankly, the American people have rejected his agenda by turning both the House and the Senate over to the Republicans, and going from 21 governors when he came into office, the 31 Republican governors now, now this president wants to act as if he is a king, as if he is a dictator.”

But the reality is that executive actions like these are an indication of presidential weakness – not dictatorial power. The fact is that one of the great frustrations of Obama’s presidency – a frustration he has expressed on more than one occasion – has been his inability to get Congress to pass more stringent gun control legislation. In response, Obama has decided to move ahead on his own, in this instance by taking executive action to broaden the definition of what it means to be a gun seller. Under existing law, those purchasing guns from licensed gun dealers must undergo a background check. Those acquiring guns privately, in contrast, do not. By broadening the definition of who is a “gun dealer”, then, Obama’s executive action will in theory expand the number of background checks.

However, while it is true that Obama is, in effect, “making law” unilaterally, the substantive impact of his actions on gun violence is likely to be small, something he concedes. Indeed, in the run up to his announcement, gun sales have soared to levels not seen in two decades. The broader point, however, is that taking executive action, as opposed to legislating, is not a very effective way to make substantive, lasting policy change.  This is a point that political pundits, and even some political scientists, frequently overlook. There are several reasons for this. To begin, executive actions have much more limited scope than legislation – presidents can’t use them to overturn existing law. Nor can they be used on actions that require spending money without appropriations by Congress. In the case of background checks, Obama can order executive agencies to redouble their efforts to expand background checks, but he can’t unilaterally appropriate more money to implement his order.

The bigger problem when it when it comes to making law via executive action, however, is that the outcome is often short-lived, a point Donald Trump drove home in his interview with John Dickerson on Face the Nation on Sunday. When asked about Obama’s proposed action, Trump replied, “Well, I will say this. There’s lot of precedent, based on what he’s doing. Now, some have been — his executive order on the border, amazingly, the courts actually took that back a step and did something that was very surprising, which is, they did the right thing, so that maybe that one — but I would be rescinding a lot of executive orders that he’s done (italics added).” Trump’s threat to rescind Obama’s executive action is not to be taken lightly. In forthcoming research Jesse Gubb and I have conducted, we have found that of the roughly 300 most substantively important executive orders (EO’s) issued during the period 1947-2003, only about half are still on the books today. About 30% have been revoked by a subsequent president and another 2% overturned by congressional legislation. Because of the censored nature of the data, this probably understates how many EO’s have been actually revoked.

Beyond the lack of durability, however, executive orders illustrate a more general weakness of relying on what presidential scholar Richard Neustadt describes as a president’s “command” authority: it indicates a failure to bargain effectively with Congress. Trump drove this point home in his interview, noting that, “It’s supposed to be you get along with Congress, and you cajole, and you go back and forth, and everybody gets in a room and we end up with deals. And there’s compromise on lots of other things, but you end up with deals. Here’s a guy just goes — he’s given up on the process and he just goes and signs executive orders on everything.” Without trying to apportion blame, or even to accept Trump’s characterization that Obama has “given up” on the legislative process, the plain fact is that the President and Congress have not engaged successfully in the process of bargaining that is at the heart of the legislative process.

There is a more fundamental risk in Obama’s approach, however, beyond the failure to secure a desired legislative outcome. It is that efforts to achieve goals unilaterally are likely to stiffen congressional resistance to future presidential efforts to secure preferred legislation in other areas. In his famous study of the presidency, Neustadt noted that when it comes to evaluating presidents, “Strategically, the question is not how he masters Congress in a peculiar instance, but what he does to boost his mastery in an particular instance, looking forward tomorrow from today.”  We have seen other instances, most notably in his efforts to expand legal protection to children who came to this country illegally, where Obama’s efforts to act unilaterally have embroiled him in legal controversy and perhaps stiffen congressional opposition to his objectives.

For all these reasons, unilateral executive action is a poor substitute for bargaining with Congress and is best understood not as a sign of an imperial presidency who can “make law with the stroke of a pen” but rather as evidence of a president’s inability to bargain successfully with the legislative branch. Speaking more generally about presidents’ efforts to achieve goals via “command” authority, Neustadt concludes that, “Not only are these ‘last’ resorts less than conclusive, but they are also costly. Even though order is assured of execution, drastic action rarely comes at bargain rates. It can be costly to the aims in whose defense it is employed. It can be costly, also, to objectives far afield.” One can understand Obama’s frustration with Congress’ unwillingness to enact more stringent gun control via universal background checks. It may be that in issuing this latest executive action, Obama will make the issue of gun control more salient to the public, thus increasing pressure on Congress to act legislatively. But I suspect it is more likely that this latest action will harden opposition in Congress to further gun control legislation and that any real progress on this front will have to wait until a new President and Congress take office. If so, Obama will not be the first president to confront the difficulty of trying to make policy unilaterally in a constitutional system of shared powers. Unfortunately, he is also not likely to be the last.


  1. I largely agree with the point you make here. But we shouldn’t overstate the ease in overturning regulatory actions. Some of the things announced today by the President were either new regulations or the finalization of regulations already proposed. In order to overturn these, the new President (if (s)he is so disposed) would need to either undertake a new regulatory process which would take years and political capital. Congress could overturn it by passing a law but unless it was part of an appropriations bill, it would need 60 votes and the signature of a willing President.

    Certainly this is all easier to accomplish than overturning a new law containing gun control requirements (and the non-regulatory actions can be undone with the stroke of a pen) but getting rid of a regulation, once properly promulgated is no easy task.

  2. I listened to his egocentric address from the White House, well, as much of it as I could stand. Never has so much been said about so little. We are governed by a fool.

    Our enemies must be rolling in the aisles listening to this buffoon concern himself with small ball whilst the world is exploding around us and he absolutely nothing. Saudis sever relations with Iran, Bahrain follows and Kuwait downgrades. Others will also follow. Why? because they all have zero faith that America will protect them from the major menace in the world today.

    And where is he? Making it harder for law abiding Americans to own guns and protect themselves. Attending global warming meetings where a bunch of stuffed shirts congratulate themselves on limiting their economies while China and others laugh at them, coin money that they loan to us as we go deeper and deeper into debt.

    I am no big fan of Donald Trump (I am maxed out for Marco), but if that is what it takes to turn our country around, he will get my vote, not that lying co-conspirator toady of Obama’s that is smugly waltzing into the Democratic nomination and wants to be Obama 2.0.

  3. Stuart – You are absolutely right that regulations, once they pass the regulatory process, are not easily overturned – particularly by legislative action in a highly polarized setting and with supermajority hurdles to clear. But while not easy to do, the data shows rescinding executive orders can be done by a politically-determined president under the right circumstances – as I noted in my post, about 30% of significant EO’s have been revoked by subsequent presidents, although this covers a lot of different topics and political circumstances. I would think this latest executive action, assuming it survives the regulatory process, will be a prime target of an incoming Republican president.

  4. Shelly – I think you’ve stated the position of a good number of likely Republican voters.

  5. Just be careful to distinguish executive orders from regulations. E.O.s are indeed easy to overturn and the 30% figure does not surprise me. The percentage for regulations is a lot lower.

    One option I did not mention is not enforcing the regulation. That doesn’t get rid of it but does minimize its impact at least until a new President comes in.

  6. Stuart – Yes, you are right to correct me regarding conflating regulations and EO’s.

  7. If President Obama is a “fool” and a “buffoon”, how was it that he was able to be elected President…and then re-elected? By the way, there was a Republican candidate both times.

    Matt, I’m surprised you let that comment be put on line. It seems inconsistent with the polite discourse you advocate on this blog. As you know, I don’t mind disagreements, but I thought the barrier was higher than it apparently is.

  8. What does Sloan’s partisan political diatribe have to do with the fundamentals of political science?

  9. I wonder how much of this might be a party story though. That is I feel like Obama is pretty aware of the limitations you bring up, and so he’s doing something that’s mainly symbolic not so much to change policy but to try to move his party towards embracing limiting gun violence as an important position.

    Faced with a Republican Party full of elected officials that either don’t think gun violence is a problem, or are so afraid of the NRA that they act like the townspeople in the old Twilight Zone “It’s A Good Life” ( I have an image of John Boehner telling Wayne La Pierre “you did a gooooood thing Wayne!” a lot over the last seven years) clearly major legislation wasn’t going to get passed. But by highlighting it so much during the nomination cycle he is getting the Dem’s to get behind his side of the issue more.

    In short I think you’re right about the nature of these relatively small bore changes, but in my view they are better than nothing and will help change his party’s positions in the long term, which will have a big impact. In fact we are already seeing changes in state laws in a number of blue states.

    Question though, is trying to influence the party in the long term a good use of presidential power? Or is it something that typically doesn’t work?

  10. Stuart makes a good point in noting the differences between regulations and executive orders, particularly the relative difficulty for future president to overturn them.

    It’s getting harder to distinguish between the various methods of executive action and more important to do so. There has been a trend, particularly with the Obama administration, toward using other tools, such as proclamations, memoranda, and departmental orders to do the work that was previously done by executive orders.

    As far as I can tell, there are a number of different tools involved in today’s announcement, none of which are executive orders:
    -Rules (i.e. regulations, these include expanding background check requirements, requiring the reporting of lost/stolen guns, removing barriers to allowing mental health info to appear in background checks)
    -Memoranda (directing DOD, DOJ, DHS to promote research, use, and acquisition of new gun safety technology)
    -Enforcement priorities (i.e. telling subordinates what existing laws to focus on. In this instance, this is accomplished partially through memos by the Attorney General. I’d include hiring more people and upgrading systems here, but these might require appropriations as well as presidential direction)
    -Persuasion of states (on the importance of background checks, again through a memo from the AG. This isn’t particularly “unilateral”)
    -Budget requests (again not “unilateral”, but they’re included in today’s announcement)

    The media isn’t great at reporting the differences. I compiled this list by looking at the information on the White House website: https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheet-new-executive-actions-reduce-gun-violence-and-make-our

    While some of these, like regulations, are more durable than the statistic on executive orders might suggest, others don’t seem to reach the level of even temporary law. Telling agencies to do a better job enforcing laws, or to look into new technology are merely first steps, hopes, attempts at persuasion, or symbolic acts. There’s very little that’s unilateral about them, even in the short term.

  11. Sorry Bob – I should have been more clear. By censored, I mean it is possible that more EO’s have been revoked than the data shows – not that it has been censored for security reasons or because of obscenity laws!

  12. Marty (and Joel) – I’m reluctant to censor any comments unless they are purely personal and completely off topic. Shelly is a long-time commentator who brings a different perspective to the comments section. I don’t always agree with what he says, or how he says it, but I leave it to my readers to make their own judgments regarding others’ views expressed here.

  13. Joel – See my response to Marty below. The fact that I allow different views to be expressed here doesn’t imply anything about whether I agree with them. But I’m reluctant to turn this site into another politically-correct forum where we need to be protected from speech that offends us – we are all big boys and girls and can agree to disagree.

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