Executive Actions: Presidential Abuse or Constitutionally Sound?


Brendan Saunders
COL ’18

The debate concerning the justifiable extent of executive power has been reignited in light of President Obama’s recent executive actions on gun regulation. In typical partisan fashion, political leaders responded to Obama’s January 5 announcement with opposing reactions. While Democratic presidential candidate Hillary Clinton voiced her support for the “crucial step forward” Obama took in the campaign against gun violence, Republican hopeful Carly Fiorina expressed her strong discontent against this “lawless, unconstitutional overreach”.[1] This oft-repeated claim, that Obama’s executive actions abuse constitutional powers, deserves a closer inspection specifically due to the informative history of constitutional limits on executive powers.

To put the recent measures against gun violence into historical context, it is first necessary to develop an understanding of these actions. President Obama’s opposition frames them as legal directives that unjustly give legislative powers to the executive. Speaker of the House Paul Ryan claimed that they go beyond the existing legal framework to target “the most law-abiding of citizens” and  “amount to a form of intimidation that undermines liberty”.[2]

Nevertheless, President Obama’s actions did not create new legislation but rather attempted to expand the operations of existing organizations and procedures. For example, the Bureau of Alcohol, Tobacco, Firearms, and Explosives was encouraged to “clarify” that anyone “‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers”. [3]
There is also a maximum $250,000 fine for failing to comply with these provisions. This executive clarification of the law certainly holds significant – and intentional – consequences regarding who will be required to hold licenses and enact background checks: it attempts to limit the number of people who claim to be private sellers, especially over the Internet, and thus avoid these two processes.[4] Still, none of the several provisions outlined by Obama explicitly creates a new legal requirement.

It is for this reason that Obama’s efforts are being touted as executive actions rather than as executive orders. In contrast to an executive action, which is a broader term for any presidential directive, an executive order carries legal weight and is recorded in the Federal Register.[5] The president may use an executive order to direct a federal agency that reports to the executive branch, and this directive is mandatory. While this power is not explicitly enumerated in the Constitution, executive orders have been deemed constitutional in principle based on the “vesting clause” that gives “executive power” to the president.[6] Clearly, an executive order is more forceful legally than a general executive action, and so analyzing an action for constitutionality by the qualifications of an executive order would logically impose even stricter restrictions than necessary to determine if the action is constitutional. This logic may be applied to the case of Obama’s recent actions on gun regulations to determine their constitutionality.

While often discussed in the media and political debates, the constitutionality of executive orders has only rarely been denied. An order may be considered legal “as long as the president has authority in that policy area, and those policies are a reasonable interpretation of court precedent”.[7] In fact, of the over thirteen thousand executive orders in American history[8], only two have been rejected by the courts.[9]

First, in 1952, President Truman attempted to end a labor strike involving the United Steel Workers of America via an executive order that would put the steel mills under federal control.[10] Since Truman needed steel for the ongoing effort in the Korean War, he considered the presidential capturing of this private property necessary. Nevertheless, the Supreme Court Case Youngstown Sheet and Tube Company v. Sawyer (1952) determined that this order was unconstitutional since he seized the property without Congressional approval.[11] More specifically, this case determined that an executive order must involve administering an existing law rather than seeking to create a new law.[12] The second instance of an executive order being revoked by the courts occurred in 1995 as a result of President Clinton’s Executive Order 12954, which would prevent the federal government from “contract[ing] with employers that permanently replaced striking employees”.[13] The D.C. Circuit court ruled in Chamber of Commerce v. Reich that this was illegal since it was in direct opposition to the National Labor Relations Act, which “guarantees the right to hire permanent replacements during strikes”.[14]

These two instances of judicial rejection of executive orders offer valuable historical insight into the conditions for the constitutionality of future executive initiatives. In the final analysis of whether Obama’s executive actions against gun violence are constitutional, it is instructive to look to these two cases as precedent. If the actions neither conflict with a current law nor create an entirely new law, then it is clear that they operate within the current legal framework and satisfy two strong conditions of constitutionality.

While there is no current effort by the Supreme Court to review these actions for constitutionality, the body did announce on January 19 that it would hear a case this year that will test the constitutionality of Obama’s 2014 executive orders on immigration.[15]
Their decision in this upcoming case will surely set further precedent for determining the legality of executive behaviors and may indirectly shape the parallel debate on gun regulations.


[1]Jennifer Hansler and Paola Chavez, “2016 Candidates React to Obama’s Gun Control Measures,” ABC News, January 5, 2016, http://abcnews.go.com/Politics/2016-candidates-react-obamas-gun-control-measures/story?id=36097217

[2] Eric Bradner and Gregory Krieg, “Emotional Obama calls for ‘sense of urgency’ to fight gun violence,” CNN.com, January 5, 2016, http://www.cnn.com/2016/01/05/politics/obama-executive-action-gun-control/

[3]“FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer,” The White House, January 4, 2016, https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheet-new-executive-actions-reduce-gun-violence-and-make-our

[4]Robert Farley, “Sorting Out Obama’s Gun Proposal,” FactCheck.org, January 8, 2016, http://www.factcheck.org/2016/01/sorting-out-obamas-gun-proposal/

[5]Julie Percha, “The nuance you may have missed in Obama’s gun control plan,” PBS Newshour, January 5, 2016, http://www.pbs.org/newshour/updates/whats-the-difference-between-an-executive-order-and-action/



[8]Gerhard Peters and John T. Woolley, “Executive Orders,” The American Presidency Project, accessed January 19, 2016, http://www.presidency.ucsb.edu/data/orders.php#orderlist

[9]Richard M. Salsman, “When it Comes to Abuse of Presidential Power, Obama is a Mere Piker,” Forbes, January 28, 2013, http://www.forbes.com/sites/richardsalsman/2013/01/28/when-it-comes-to-abuse-of-presidential-power-obama-is-a-mere-piker/#3689579a601a5d3875b5601a

[10]“Youngstown Sheet & Tube Co. v. Sawyer,” C-SPAN Landmark Cases, accessed January 19, 2016, http://landmarkcases.c-span.org/Case/7/Youngstown-Sheet–Tube-Co-v-Sawyer


[12]Richard M. Salsman, “When it Comes to Abuse of Presidential Power, Obama is a Mere Piker,” Forbes, January 28, 2013, http://www.forbes.com/sites/richardsalsman/2013/01/28/when-it-comes-to-abuse-of-presidential-power-obama-is-a-mere-piker/#3689579a601a5d3875b5601a

[13]Vivian S. Chu and Todd Garvey, “Executive Orders: Issuance, Modification, and Revocation,” Congressional Research Service, April 16, 2014, https://www.fas.org/sgp/crs/misc/RS20846.pdf


[15]Josh Gerstein, “Supreme Court to rule on Obama immigration orders,” Politico.com, January 19, 2016, http://www.politico.com/story/2016/01/supreme-court-to-rule-on-obama-immigration-orders-217860

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