Published January 12, 2013
Washington – As Vice President Biden prepares to hand in a set of recommendations to curb gun violence next week and pro-gun groups dig in their heels, the vice president has put in play the possibility of using executive action to get controversial gun control measures on the books.
Analysts and political scholars tell FoxNews.com that if the president goes through with his threat to circumvent Congress and issue executive orders, he is likely to face an expensive uphill legal battle – on the taxpayers’ dime.
But while pro-gun lobbyists have vowed to challenge President Obama’s constitutional authority on the issue, that doesn’t mean the president won’t attempt executive action. A unilateral move to ban assault weapons could be legally perilous, but analysts say there are other measures the president could at least attempt.
“Much of what the Obama administration can get done will depend on” how far they try to stretch the bounds of executive power, law professor David Prince told FoxNews.com.
In the past, the Obama administration has used executive orders, which have the force of law, to require gun dealers to report when customers buy multiple high-powered rifles and to increase penalties for violating gun laws.
A new order, nearly certain to face legal challenges, could seek to tighten enforcement of laws governing private sales of guns or to beef up background checks.
The White House has not given much guidance on what executive action Obama may consider, but analysts say the most likely items include a ban on high-capacity magazines. They also said the president could try to use his executive weight to track the sale and movement of weapons via a national database as well as impose stricter background checks on the mental health of prospective gun buyers.
Other measures could include forcing the Justice Department to go after people lying on their background check forms and making gun-trafficking a felony.
Legally, Obama can use his executive powers to act alone on some gun measures, but his more controversial options on the proposals opposed by well-funded, politically powerful advocates like the NRA are limited without Congress’ cooperation.
Prince said it would be easier to beef up laws already on the books but added that trying to get an assault-weapons ban to stick would be much harder. The federal assault-weapons ban, which prohibited the manufacturing for civilian use of 19 models of semi-automatic weapons, including shotguns and some rifles, passed in 1994 but expired in 2004. Because Congress – elected by the American public -- let the ban expire, it would make it more difficult for the president to make a legal case to reinstate it.
Prince, a professor at the William Mitchell School of Law, said if Obama uses an executive order to ban assault weapons, it is likely the NRA will sue the government and the case could be tied up in the legal system for years.
Obama has pushed reducing gun violence to the top of his domestic agenda following December’s bloody rampage in a Connecticut elementary school with a legally purchased high-power rifle that left 20 children and six adults dead.
Issuing an executive order is not a new idea. It has been used many times before.
In 1989, then-President George H.W. Bush halted the importation of some semi-automatic firearms that could be considered “assault weapons” under existing legal authority provided by the 1968 Gun Control Act, under the determination that they were not “particularly suitable for or readily adapting to sporting purposes.”
Bush used his executive powers after a career criminal killed five kids and wounded 29 others with an AK-47 assault rifle on Jan. 27, 1989, in California.
“Some helpful lessons can be learned from recent experience about how an aggressive president can use his power for appropriate and beneficial purposes, and these lessons can help guide the current and future presidents of the United States in making executive decisions,” Todd Gaziano, director of Center for Legal and Judicial Studies at the Heritage Foundation, said.
In the end, the constitutional separation of powers supports both sides of the argument over a president's proper authority.
It reinforces a president's right to issue an order to carry out a particular power that truly is committed to his discretion by the Constitution or by a lawful statute passed by Congress. On the other hand, the constitutional separation of powers cuts the other way if the president attempts to issue an order regarding a matter that is expressly committed to another branch of government; it might even render the presidential action void, Gaziano said. Still, the separation of powers can be ambiguous, leading to court battles.