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Executive Orders: the ultimate non-jury verdict

As I sat through orientation for jury duty the morning of January 5, the irony did not escape me.

The jury clerk thanked us prospective jurors, underscoring that we’d been summoned away from our jobs and responsibilities for good cause. “Imagine if we had no juries, and every court decision rested solely in the hands of a single judge, as it does in many other nations,” he said. The system would be ripe for biased outcomes and abuse of authority. “Democracy cannot not be realized when left only in the hands of the powerful.”

I scribbled his words onto my notepad. His comments struck me hard. On the drive to the courthouse less than an hour before, I had listened to the news of President Obama issuing an executive order on gun control.

“Until we have a Congress that’s in line with the majority of Americans, there are actions within my legal authority that we can take to help reduce gun violence to save more lives,” the President had stated. He claimed his policy would be supported “by the overwhelming majority of the American people, including gun owners.”

The NPR radio report included an endorsement by White House spokesman Josh Earnest. “The president’s view is that he is going to forcefully advocate for the kind of gun safety measures that common sense tells us will not prevent every act of gun violence, but even if it makes some acts of gun violence less likely — and we can do all of that without undermining the constitutional rights of law-abiding Americans — then why wouldn’t we do it?”

So why wouldn’t we? I considered this question as I bided my time in the jury selection waiting room. After all, only a monster wouldn’t want to help prevent gun deaths. Of course I’d like to find policies to lower gun violence!

But even if President Obama’s heart is in the right place, there are several reasons why his executive order is problematic. Let’s break down the White House spokesman’s statement:

  • The president “is going to forcefully advocate” gun safety measures

By “forcefully,” Earnest means the president is imposing a piece of legislation by “executive order” without the consent of Congress.

No provision in the Constitution explicitly permits a president to issue executive orders, but the practice has a history as long as our government itself. In the 20th century, however, executive orders became much more commonly used by presidents for both good and bad purposes. For example, Eisenhower desegregated public schools and Truman desegregated the military by executive order. But it was also used by Franklin Roosevelt to round up Japanese Americans during WWII and remove them from their homes.

As my jury clerk explained, when we allow one person in power to create laws, even for something they personally consider in our best interest, democracy is not served. If this is true of individual court decisions, it’s immeasurably more important when it comes to a national law.

An easy way to drive home the danger of executive orders is to consider some of our next presidential choices, be it Donald Trump, Hillary Clinton, Bernie Sanders, Ted Cruz or anyone else. Pick your least desirable candidate, then pick the scheme of that person that you fear the most. Should a president be allowed to to push through legislation to construct a patrolled wall around America’s southern border? Should he be permitted to take over the health industry and make it a governmental agency?

  • The president wants to create “the kind of gun safety measures that common sense tells us will not prevent every act of gun violence, but [may possibly make] some acts of gun violence less likely.”

“Common sense” is a specious term. As described above, the president’s common sense conclusions and passionate beliefs may be completely different from yours, or from what Congress would vote for.

  • We can pass this executive order “without undermining the constitutional rights of law-abiding Americans.”

Here Earnest is giving his opinion, but presenting it as fact. Whether or not you agree with him, the truth is that the constitutionality of gun regulations is an ongoing debate that hasn’t been resolved.

  • “If it makes some acts of gun violence less likely…then why wouldn’t we do it?”

This is aimed at our emotions but is a flimsy argument. Even if a law will potentially solve a particular problem, it doesn’t mean we should necessarily take that path. For example, there were 32,719 automobile fatalities in 2014. Every one of those deaths is a tragedy. Though outlawing cars would certainly make automobile deaths a thing of the past, just because it’s possible to pass that law doesn’t mean we should.

The primary reason executive orders should give us pause is because there are inherent dangers when our president makes laws without the consent of Congress. Groups such as The Heritage Foundation have accused presidents of abusing this executive privilege in order to make laws that would not pass Congressional approval, or to shift existing laws from their original aims.

Just one example is Executive Order 12333 issued by Ronald Reagan in 1981 to authorize foreign intelligence investigations. Presumably, Reagan crafted this law with the people’s best interest in mind to protect them from foreign threats.

The problem is that this act has been expanded upon by one president after another without being subject to meaningful oversight from Congress or any court. Today that order is the basis for NSA policy that allows the government to spy on our emails, our phone conversations and more without issuing a warrant. As Sen. Dianne Feinstein, D-Calif., chair of the Senate Intelligence Committee, has said, her committee cannot sufficiently oversee NSA programs or protect the privacy of Americans because “the executive controls intelligence in the country.” Even those who may trust Obama must recognize that future presidents will also have that power and may continue to expand it at their will.

For example, without checks and balances, Obama’s executive order could someday be expanded to include a No-Gun List, barring anyone chosen from legally purchasing a gun without explanation. We already have a precedent: the government currently has a No-Fly List which prohibits people from boarding aircrafts in or to the U.S. There were 47,000 people on the list in 2013 and the government need not disclose why any of those people were selected. The ACLU has spent 5 years  challenging the policy’s vague standards of inclusion, lack of transparency, and the roadblocks faced by the innocent to get taken off the list.

Now let’s examine Obama’s own statements:

  • “Until we have a Congress that’s in line with the majority of Americans, there are actions within my legal authority that we can take to help reduce gun violence.”

The President’s premise is that Congress is not voting in line with the public’s wishes. Yet it’s hard to substantiate Obama’s claim that his policy would be supported “by the overwhelming majority of the American people, including gun owners.” The polls show a divided America. In December 2015 a Quinnipiac University poll showed that 47% of Americans supported stricter gun laws, with 50% opposed. A CNN poll found 48% in favor and 51%.

So without overstepping Congress, how can the President take positive steps to help reduce firearms deaths?

  • “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?” President Obama asked on Tuesday.

According to Stephen Teret, founder of the Johns Hopkins Center for Gun Policy and Research, our Commander -in-Chief could have a hand in moving smart-gun technology forward. Teret believes that if federal law enforcement and the military supported smart guns, their large demand would be the incentive that manufacturers and investors needed to consider such guns as a viable product.

  • Education and research

Educating the public about safe and responsible gun ownership through a national teaching campaign is another avenue to help reduce misuse and accidents. So is establishing research into the causes and prevention of gun violence. Obama actually signed legislation to institute both these measures in January 2013, but unfortunately three years later we have yet to see evidence of either.

The democratic process can be frustrating when a cause we’re advocating gets stalled.  But if we believe in democracy, then we must respect the processes of our free nation, even when they’re slow-moving or go against our desired outcome. Executive orders can dangerously expand the power of our chief executive and run contrary to our constitutional checks on government. All legislation, including gun laws, should only be enacted through the appropriate channel of congressional approval.

 

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1 Comment

  1. moreatforty says:

    The system has checks and balances. Executive Orders can be checked in two ways: First, the Supreme Court can check constitutionality of EOs. Although, I would say that the Koramatsu case is an example of a failure of the Supreme Court (IMHO), so it isn’t always fail safe. The second is that the Congress can pass legislation that would change the implementation of the EO. The big problem right now is that Congress seems unable to do anything but the most necessary of legislation (debt ceiling, etc.) for preventing the total shut down of Congress. And I think this stems less from them being concerned about “big government” as is the refrain and is more the result of elections being influenced by money rather than constituents. I believe the President is right when he says that a majority of Americans agree with his actions (which, by all reports, were rather minor in the overall scheme of gun control legislation and probably not the type of sweeping legislation that poll takers were responding to in those polls you quoted, but who knows – as you say, the numbers are close and I don’t know what the questions were in those polls). But, the Congress couldn’t possibly get them passed because they are constantly in a cycle of re-election and held to the desires of corporate and private money that allows them to win those elections. I agree with you that our “democratic” system is flawed, but the EO is not the biggest problem in my eyes. The influence of elections by money rather than people is.

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