Is Obama's Gun Control Executive Order Defensible?

The Arizona state legislature is considering passing a law that would protect the state against federal agency actions that violate the Constitution.  It would make it illegal in Arizona to cooperate with any federal “executive order” not affirmed by a national vote in Congress.

This legislative bill is a call for coordinated nuisance to make federal implementation difficult in Arizona.  State non-compliance can lift nuisance to the level of mischief, but that does not cancel federal law. A key reason our enduring Constitution was created was because the Articles of Confederation lacked the ability to enforce its will on the states, so you might expect the states down the road of history to object to certain federal actions. Arizonans may argue that the state has no obligation to comply with constitutionally illegal federal orders, but federal Executive Orders are not unconstitutional.

The Constitution does not spell out how the President should perform his duties, but it explicitly delegates to him the discretionary power of a Chief Executive (Article II, Section 1). The President's "federal directives," then, stand on the same ground as Congress' "federal legislation." He is instructed to "take Care that the Laws be faithfully executed" (Art.II, Sec.3). The three branches of government (Congress, Court and President) act in concert. The President's pronouncements (whether "orders," "memoranda," "decisions," "resolutions," or "proclamations") are normally couched as intended to provide his managing officers with instructions on performing their assignments.  

But these dictates are more than in house directives.  They are presumed to have the force of law, in the name of the Constitution. The absence of an Executive with this power was precisely why the Continental Congress bowed to the Philadelphia Convention's re-write that granted the President administrative authority. The Constitution covers the President's back as he establishes administrative policy to resolve the political and social problems the nation faces.  On more than one occasion in our past the President has threatened and even sent troops into states that have raucously resisted national law. In such cases he was doing his Constitutional job, "caring" for the national well-being from the "federal" home office.  

But what if the President oversteps his bounds?  There is no "constitutional"  provision for invalidating an Executive Order. At the core of the controversy is interpretation not validity. Nevertheless, there are several ways to counter an Executive Order. The Supreme Court can make a ruling against it, but court action is not the only way to get "interpretation" right. Congress can de-fund the agency involved, or pass new legislation on the issue (if vetoed, the stoppage can, with difficulty, be overridden).  The President can be impeached, or not re-elected.  Or a subsequent President can simply erase the order.   

Samples of other means that we, the people, have tried using in the past to challenge "Federal" action include: the Virginia and Kentucky Resolves (states objecting to the "alien and sedition" laws), the Hartford Convention (New England's threat to secede from the Union because of "Madison's War" of 1812), and South Carolina's objection to the "Tariff of Abominations." (1828). These gritty expressions of state dissent proved impotent for various reasons.

More often than not, Executive Orders (and other less commanding directives) are the President taking action when Congress dithers and procrastinates. In situations that need immediate handling, the President as Chief Executive may properly step forward when the rest of  the "federal" system (Congress) fails in responsibility or is torn by partisanship. Truman's racial integration of the Armed Forces may serve as an example.  By Executive Order Truman broke this log jam of insistent social advance.  If the President moving forward is judged to be wrong, he can be rebuked or removed; if right, praised and highly "rated." Jefferson's precipitate  purchase of the Louisiana Territory, without asking Congress, is the main reason he is rated near the top in Presidential rankings.  As for President (G.W.) Bush, within months of his  "troop surge" in Iraq, he was replaced by an Iraq war opponent (Obama), who began withdrawing our troops.

In all--Washington to Obama--Presidents have issued over 15,200 Executive Orders ranging from lowering of flags to half-mast, declaring a "bank holiday,” desegregating schools, interning Japanese, even starting wars ("police action").  Relatively few of these have been much contested.  For example, of Franklin Roosevelt's 3,522 Orders, the Supreme Court overturned only five, and only two of our "order happy" Presidents have been impeached, both times in vain.

Obama's gun control Executive Order, in my mind, is in the Truman mold -- taking necessary action to end stalemate (integrating the army, or commandeering the steel industry to force an end of a national strike during wartime).  Facing repeated mass shootings, Congress today is stymied largely by the force of private lobbying (NRA). If the states aren't happy with this Constitutionally legitimate "federal" tool of gun regulation, they need to spur their Congressional representatives in Washington D.C. to override the President.  I don't think the Supreme Court will determine the matter; it cannot initiate cases, it can only interpret them on appeal--a dilatorily slow process.  

In the past, when seceding states lost hope in properly countering a President who wanted to end slavery, we ended up in a Civil War.  Yet anti-slavery eventually won, regardless of the southern states adamant objection; and no northern states called Lincoln's formation of a Union Army an unconstitutional act.

What gun control opponents forget (or don't know) is that the 2nd Amendment is philosophically based on "regulation."  The prefacing clause of the one sentence-long amendment states its reason for upholding ownership of guns by individuals--namely because a "well regulated" militia [private citizens] was [from past experience] deemed "necessary." This clearly is not a Constitutional rally for ownership of guns by individuals for open season reasons.  

If the public wants unguarded dispersal of guns, there is a way to introduce this: addend the Constitution (stating why the intent of the 2nd Amendment is insufficient.) Meanwhile the opponents of gun control should stop disingenuously lopping off part of the 2nd Amendment when they (partially) quote it. The real Amendment pairs "regulation" with gun use.  Actually I have never heard or seen any opponent of gun "control" actually quote the Amendment; they only paraphrase it, thereby misusing it for special interest purposes. If the historically positioned Amendment does not suit the large number of alternate interpreters, they should promote a new Amendment.  I don't expect them to, because this would be tacit admission that the original one doesn't meet their free-wheeling wishes--something they adamantly deny. You see, the legality of regulation is not at stake, it is a matter of the President responsibly stepping forward to administer gun handling rules of regulation, as the Constitutional amenders understood.

If Donald Trump becomes President, I expect he would entertain "ordering" more gun freedom.  Can't you hear him now, echoing the NRA's position: "we need more guns, not less"! Then guess who would be arguing against Executive Orders.

Doug Good

Is Democracy Threatened by Disease-carrying Immigrants?

I was recently privileged to receive an email discourse about how the Obama Administration has been hiding the truth from the American public regarding the connection between open immigration and the potential for epidemic spread of diseases hitherto under control here. For example, the article pointed out that the report of 900 new leprosy cases in the years 1996-2000 increased to 9000 for the three years 2002-2005--years in which Islamic jihadist terrorists have been infiltrating across our border.

Notice of our failure to take steps to protect our citizenry from the introduction of diseases with epidemic potential is an important warning.  All care should be taken to use medical knowledge and protective procedures to stamp out disease. But casting the message in anti-immigrant tone carries another threat.  We also need to protect the integrity of America reputed as the "hope for the world" as a trail blazer for democracy.   

      If we are to believe many of our aspiring politicians, we need to re-vision our "founding doctrines," for standard democracy is too inadequate for doing what needs to be done to assure our national strength.    Apparently we need to see ourselves not as a land of the free, but a land led by and for the healthy and physically whole; and we are to know that love, acceptance, respect and sacrifice are hindrances that divert us from securing liberty for those of us who have risen to the top--the notion that exclusivism is the way to protect what we have won for ourselves.  This revisionist kind of "democracy" mocks what underpinned the original "spirit of '76."

I sense that there is something fundamentally wrong with a desire to screen out our fellow humans who would join with us in our democratic celebration because they hail from countries with poor health histories.  This is not just a health issue, it is cousin to political narcissism.  If we would let the medical professionals deal with what is a valid concern, we will not be so vulnerable to the disease of zenophobia.  

Another shadow looming over instinctual protectionism is the temptation to lose track of Christian responsiveness. If we can't have it both ways--universally shared freedom, and medical insularity--should we choose the second at the expense of the first?  Jesus did not opt for this kind of exclusionary choice.  From my reading of the New Testament, I find no mention of Jesus recommending that all the leprosy colonies be emptied, the residents be deported, and all immigrants into Palestine be screened according to their country of origin.   As Jesus met the problem of endemic sickness, he stepped in after the fact in individual cases and provided instant healing, no matter who the subject was.  This healing ability is a rare gift, but quarantine is a poor excuse for not first turning to our medical professionals for dealing with the problem. Quarantine is a limited device that combines a narrow focus while weakening our commitment to Jefferson's "unalienable rights." Small mindedness and the odor of selfishness cling to desperate measures.  Throwing out the baby with the polluted water is only an act of desperation by those undeserving of carrying the Christian banner of American democracy.  Let's study for a better way to "prove ourselves worthy."

Do we think that Jesus had no better idea than quarantine for general welfare?  Was Jesus  committed only to relieving physical suffering one by one?  Did he have no advice for the cure of the sickness of social discrimination, no interest in the lucky ones sharing their favorable circumstances?  Did Jesus decide to ignore the problem of Roman occupation and Zionistic fervor because he thought we should handle such political matters by our own devices?  Do we really believe that the heart of the Gospel is inadequate for the realities of today's politics, that the challenges of a world of instant communication and jet speed travel are too overwhelming for the concept of "democracy" that calls for acceptance and the "lowering of our dukes" and reaching out with acceptance to our contiguous  neighbors?  Do we think Jesus' message needs updating?

In line with the wisdom of such thoughtless advice--to improve on the supposed limitation of Jesus' singlehanded medical help--we seemingly should let the unattended sick people ride out their illness in isolation--except where a few "healers" are available--while the rest of us more politically conscious folk deal with the overreaching task of barricading ourselves from the world.  If consistency is more important than first principles, then I must guess that applying immigrant exclusion as an answer to the threat of contagious disease also calls for us, as a precautionary measure, to deport all the poor citizens of our country who can't afford health insurance, so that if they get sick and can't pay for treatment, they won't spread their diseases here at home.

I'm holding my breath, expecting Donald Trump to pick up on this juicy idea.

Doug Good