In the two weeks since President Obama announced his latest tranche of executive orders on guns, many Republicans have accused him of making a dramatic power grab over the legislature. Alex Bolton and Sharece Thrower disagree, writing that there is little guarantee that any of Obama’s instructions will actually be executed, and those that are may be overturned by the courts. They argue that Obama’s actions actually exemplify the constraints faced by presidents who try to make policy without Congress

Bolton, Alexander

Thrower, Sharece

LSE Research Online

blogs.lse.ac.ukhttp://blogs.lse.ac.uk/usappblog/2016/01/18/despite-obamas-actions-on-gun-control-there-is-little-he-is-able-to-do-to-change-the-status-quo/Despite Obama’s actions on gun control, there is little he is ableto do to change the status quo.In the two weeks since President Obama announced his latest tranche of executive orders on guns,many Republicans have accused him of making a dramatic power grab over the legislature. AlexBolton and Sharece Thrower disagree, writing that there is little guarantee that any of Obama’sinstructions will actually be executed, and those that are may be overturned by the courts. Theyargue that Obama’s actions actually exemplify the constraints faced by presidents who try to makepolicy without Congress.Earlier this month, President Obama announced a new series of executive actions aimed at curbinggun violence in the United States.  These actions were immediately met with harsh criticism fromRepublicans on both substance and process, with House Speaker Paul Ryan accusing PresidentObama of “at minimum subverting the legislative branch, and potentially overturning its will.”Republican presidential candidates also condemned President Obama’s planned actions.  Forinstance, Senator Ted Cruz’s campaign tweeted a picture of the president donning a crown, with thecaption “gun control is government control”:However, President Obama’s executive actions, rather than being dramatic power grabs, actually typify theconstraints that presidents face when trying to make policy “alone.”  The measures being proposed are relativelylimited in scope, could easily be overturned by a future president, and most could be stopped or reversed by otherpolitical actors, including Congress and the courts, in the near term.The gun control executive actions proposed by the president can be classified into three broad categories: agencyinstructions, the issuance of new regulations, and budget proposals.  In this post, we review each of the proposals inthese categories.Instructions to AgenciesSeveral of the new executive actions consist of the president and Cabinet officials giving instructions to agencies andtheir employees.  For instance, Attorney General Loretta Lynch has encouraged US Attorneys across the country tomake enforcement of existing gun laws a top priority.  Additionally, she sent a memorandum urging US Attorneys tofocus particularly on domestic violence.In a presidential memorandum directed at agencies, President Obama has also ordered the Departments ofDefense, Justice, and Homeland Security to “conduct or sponsor research into gun safety technology” and “reviewthe availability of smart gun technology on a regular basis, and to explore potential ways to further its use anddevelopment to more broadly improve gun safety.”While instructions from the president to agencies can have large policy effects given his role as the head of theexecutive branch, this is not always the case.  Indeed, they are a relatively mild form of executive action. First,presidential instructions require action by others across the bureaucracy in order to be implemented.  Because ofthis, there is no guarantee that they will be executed faithfully or at all.Similarly, once President Obama leaves office, so will the vast majority of his political appointees at the leadershiphelm of executive agencies. Thus, even if US Attorneys begin vigorous prosecution of gun crimes this year, forinstance, many of them will be out of a job on January 20, 2017, particularly if a Republican wins the White House.New appointees will not be bound by instructions from a previous administration in this case. Further, subsequentpresidents can easily overturn Obama’s directives and are more likely to do so if opposed to them.Similarly, even if the current Secretaries of Defense and Homeland Security join with the Attorney General andcommit to funding more gun safety research, there is no guarantee that funding will ever be distributed if it does nothappen by the end of the year.Fundamentally, instructions to agencies are not necessarily efficacious means of bringing about significant, long-lasting policy changes.RegulationsThe White House also announced that several agencies would be issuing new regulations designed to advance itsgun agenda.  First, the Bureau of Alcohol, Tobacco, Firearms, and Explosives is planning to release a rule that wouldrequire individuals purchasing firearms through a trust or corporation to be subject to background checks.  Theagency also finalized a rule that would require dealers who transport guns to report to law enforcement if firearms arelost en route to their destination.The Social Security Administration is also planning to undertake a new rulemaking that would facilitate the transfer ofmental health data from the agency to the National Instant Background Check System.  Similarly, the Department ofHealth and Human Services finalized a rule, first proposed by the administration in its 2013 gun executive actions,which would allow states to more easily feed mental health information into the system.Featured image credit: President Barack Obama (Official White House Photo by Pete Souza)While regulations have the force of law when they are finalized and published in the Federal Register, thus makingthem an important source of executive policymaking authority, they are also susceptible to being overturned or madeineffective through court and congressional actions.All of the regulations that have been released or will be released are subject to challenge in the federal courts.Judges have the power to delay the implementation of rules pending litigation and overturn part or all of a regulation. Agencies must pay close attention to statutory boundaries when writing new regulations to avoid this latter outcome.Gun lobby groups have already promised to challenge the new regulations in court.Regulations can also be subverted by Congress through a number of means. The congressional appropriationsprocess offers one avenue through which Republicans can stymie administration priorities.  In particular, limitationriders can be included in appropriations laws that forbid agencies from using appropriated funds to implement ormove forward with regulations. These riders would, of course, be controversial, and would no doubt attract vetothreats from the president, risking the possibility of a government shutdown.The regulations will also face certain scrutiny if a Republican president takes office next year.  Regulations can berescinded, and a president that is unsympathetic to these highly salient regulations would in all likelihood move torepeal them.Budget ProposalsIn the final set of executive actions, President Obama announced his intention to propose funding in his FY 2017budget for 200 new agents and investigators in the Bureau of Alcohol, Tobacco, Firearms, and Explosives in order toenforce gun laws. Additionally, he is also proposing to invest 500 million dollars to help individuals with mental healthillness. Though the president certainly has the freedom to propose these increases, such budget proposals mustultimately be approved by Congress, as funds are distributed following the passage of appropriations bills.With the prevalence of divided government and extreme polarization, passing appropriations bills is an exceedinglydifficult task for both Congress and the president. Not only can Congress reject the president’s budgetary proposals,but stalemates within the legislature can occur when other policy conflicts arise with the executive branch, such as inthe case of the 2013 shutdown of the federal government centered around Republican efforts to defund Obamacareor the standoff over funds for the Department of Homeland Security in 2015.Overall, there is no guarantee that the president’s budget proposals on gun control will be approved by Congress. Infact, it may face severe challenges from Republican opponents in both the House and the Senate. Further, Obama’sother gun control proposals could also be in danger if they require congressional funding and staffing for existingprograms or if they attempt to create new ones. In fact, House Republicans have already stated their intention toblock the implementation of these new executive actions by defunding the Department of Justice through proposedlegislation.Change must come from elsewhereIn sum, despite claims of executive overreach from political opponents within Congress and even the media,President Obama’s actions on gun control reflect the overall constraints he faces within our governmental systemwhen attempting to influence policy unilaterally. In fact, many of his proposed executive actions are not unilateral atall, but are subject to checks from both the legislative and judicial branches. Further, these actions can be easilyoverturned by subsequent administrations or stalled by legal challenges, similar to his executive actions onimmigration.Ultimately, significant and durable policy change on gun violence in the United States cannot come from the presidentalone. Instead, it will require buy-in from other political actors, notably Congress. In a presidential election yearfeaturing divided government and extreme polarization, however, this seems like a remote possibility.  Absent somesignificant change in the political environment, the status quo will remain largely unchanged.Please read our comments policy before commenting.           Note:  This article gives the views of the author, and not the position of U.S.App– American Politics and Policy, nor ofthe London School of Economics.Shortened URL for this post: http://bit.ly/1neT9TA _________________________________ About the authorsAlexander Bolton – Duke UniversityAlexander Bolton is a Postdoctoral Associate at Duke University’s Social Science ResearchInstitute.  His research interests include executive branch politics and policymaking in the UnitedStates. Sharece Thrower – University of PittsburghSharece Thrower is an Assistant Professor in the Department of Political Science at the University ofPittsburgh.  Her research interests include American political institutions, separation of powers, andexecutive policymaking.CC BY-NC 3.0 2015 LSE USAPP

Despite Obama’s actions on gun control, there is little he is able to do to change the status quo.

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