John C. Eastman
January 5, 2016
"Never let a crisis go to waste." President Obama is employing that old Alynskite tactic again, this time to advance his radical gun-control agenda with nothing more than his executive pen.
He is doing this by unilaterally redefining the phrase, "in the business" of selling firearms, that has been a part of federal law since 1968. At the time, the phrase was a bit ambiguous, so Congress defined it explicitly in the Firearms Owners' Protect Act of 1986 to mean "a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms....” 18 U.S.C. sec. 921, 100 Stat. 449–450. President Obama's executive order bypasses Congress to effectively re-write this statutory definition and excise the entire last clause.
Earth to President: Article I, Section 1 of the Constitution says that the lawmaking power is vested in Congress, not in the President.
The President's executive order also purports to deploy hundreds of millions of dollars in new initiatives not authorized by Congress. But again, the Constitution says it is Congress, not the President, which is to decide where federal funds get spent. Article I, Section 9 is clear enough that even a former law school lecturer should be able to understand it: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." That last two words, "by law," means enacted by Congress through the constitutional mechanism of bicameralism (passing both houses of Congress) and presentment (to the President for signing). Without that, we have no law, and therefore no appropriation made by law, and therefore no authority to draw money from the treasury.
As troubling is the demogogic rhetoric that the President has deployed in support of his usurpation of the lawmaking power, for truth be told, none of these extra-constitutional measures would have prevented any of the recent gun violence attacks. Indeed, time and time again, we see the futility of imposing greater restrictions on gun ownership by law-abiding citizens, supposedly in order to limit gun use by those who are already committing much more serious crimes. How foolish it is to think that someone bent on murdering a competitor drug dealer, or committing an act of armed robbery, would somehow be deterred by the thought that his purchase of the gun from an individual not in the business of selling firearms (but who must now become registered) would now violate Obama's "law."
Congress understands this. That is why the President has failed in his several prior attempts to ratchet up our gun control laws. But as he has done in so many other areas large and small, from immigration amnesty to Obamacare waivers to the renaming of Mt. McKinley, the President thinks inaction by Congress is not a reflection of satisfaction with existing law, but an invitation for unilateral action by the President himself to change that law—that the failure (or rather refusal) of Congress to act is a flaw in the system, not a critical part of our constitutional design. This guy thinks himself a dictator entitled to pursue a radical agenda because he wills it, not the President of a Republic who must work without the separation of powers set out in the Constitution. Let's only hope that the other branches of our government—the Congress and the Judiciary—understand the threat to our Constitution that these and so many other actions by this President represent.
This piece was originally published at the Federalist Society blog.