AP Photo/Carolyn Kaster
One of the most misleading things that high school civics classes teach is that the United States government is based on strict separation of powers: Congress legislates, the executive branch carries out those laws, and courts judge.
But as Obama’s announcement on gun regulation yesterday—in which the president laid out 23 executive actions he could take on gun safety without congressional approval—shows, that’s just not the system the framers of the Constitution gave us. In fact, as Richard Neustadt, the late founder of Harvard’s Kennedy School of Government, explained long ago, we have a system of separated institutions sharing powers. Yes, Congress legislates. But not only does the president have a direct role in the legislative process thanks to the veto; he signs executive orders and issues regulations through agencies that look an awful lot like making law.
You won’t hear it from House Republicans and other conservatives, who are talking impeachment over the prospect that Obama might use executive orders as part of his gun-safety initiatives (this notwithstanding that, by one count, Obama uses executive orders less frequently than most presidents), but executive orders save Congress from passing laws that -would have to be far more detailed and complex than they currently are. Not only that: sometimes the easiest way to get a bill over the finish line is to leave the specifics up to the regulators over in the executive branch. So often the path of least resistance for Congress is to pass vague legislation and leave it to the executive branch to fill in the details. In other instances, they’ll simply turn their own powers over to the president. After all, they can sometimes get the best of both worlds: duck a necessary but unpopular vote, and criticize the person in the Oval Office who has to make the decision.
That’s easy to see in the group of initiatives Barack Obama unveiled for combatting gun violence. There’s a good chance that Republicans and many Democrats wouldn’t want to vote against, say, requiring the FBI to trace the history of guns they recover in the course of an investigation—one of the measures in Obama’s gun program. But many legislators would fear incurring the wrath of the National Rifle Association for supporting such a provision. Better to let the president issue an executive order. That leaves Congress free to complain that he’s doing too much (or too little) without having to actually get into the details of anything or risk a controversial vote.
Most of the measures Obama proposed to undertake without Congress’s help were relatively uncontroversial—stuff like starting a “a national safe and responsible gun ownership campaign” and encouraging government agencies to share information. He held back on at least one major piece he had authority to use: blocking imports of some semiautomatic weapons. Was he afraid to take on the NRA on that one—or is he holding it back as a threat if congressional Republicans block attempts to pass gun-control legislation? This may be part of an emerging Obama strategy: Pro-gun lobbyists might well prefer to cut a deal on a moderate law rather than allow the president to take more radical steps on his own.
For Obama’s opponents, the advantages of a deal (given those assumptions) are obvious: less regulation. So why would gun-control advocates be willing to deal? Executive orders have one minor flaw, and one major one. The minor flaw is that they can be defeated by a law. That would be a big deal, but laws are hard to pass—especially if the president is against them. So it’s a consideration, but not a huge one. The major flaw, however, is that a future president can overturn an executive order just as easily as the current president issues it. That’s why every time we have a change of party in the White House, one of the very first things that happens is a new set of executive orders on abortion overturning the policy of the previous chief executive.
That’s executive orders. Agency-authored regulations have another tricky wrinkle: the agency might resist what the president wants. Remember about “separated institutions sharing powers” from before? It turns out that another thing your civics class taught you – that executive branch agencies report ultimately to the president – was wrong, also. Instead, the president must compete for influence over what agencies do with Congress, the courts, interest groups, the parties, and the bureaucratic interests of the agencies themselves. And presidents don’t always win. So while it’s easy for us to say that a president should simply have agencies draft new regulations, it’s not always easy to accomplish .
Given all that, both sides really can have incentives to cut a deal in many cases. It takes a president who is willing to use all the tools of his office…but also one who is good at negotiating. It also, and this might be the biggest problem for Obama, requires an opposition which is willing to cut a deal for incremental gains, even if it allows the president to walk away a winner (albeit less of an immediate policy winner than he might have been acting alone). It’s not clear that House Republicans are willing to do that. Congressional Republicans might not look right now as if they could be real bargaining partners, but we don’t really know how it will play out.
Presidents can never force Congress to act – they can’t even always force the bureaucracy to act. And there’s little that they can do to affect public opinion; in this case, it’s especially unlikely that Barack Obama can affect the views of those constituents House Republicans are most responsive to. What presidents can do is to act where they have the authority to do so, and there’s plenty that entails in gun safety, for climate, for immigration, and on many other issues. And by threatening to act, they can at least try to change the incentives for opposition Members of Congress, pushing them to see that legislative gridlock might not be their best option. Obama hasn’t done nearly as much as he could do so far, but perhaps his efforts on gun violence are a sign of things to come in his second term. If so, it might be a lot more productive than a lot of people expect.
All in all, however, whether it’s gun violence, immigration, or even health care, the combination of executive orders and negotiation with Congress can be a potent tool for any president. Barack Obama hasn’t used it much, yet; he didn’t need it too often in his first two years, and he didn’t turn to it much once Republicans took the House. But I suspect it’s going to be a major weapon for him during his second term. At least, it certainly should be.
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