President Obama

  • January 22, 2013
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University. This post first appeared on Shane Reactions.

    Not being a psychiatrist, I don’t really understand why the President’s fairly modest efforts at gun policy reform seem to have utterly deranged some of his political opponents.  But talk of impeachment in connection with his gun-related “executive orders” is, to put it mildly, ridiculous.

    To put matters in context, it helps to understand “executive orders.” These are presidential directives – sometimes formally called “executive orders,” sometimes not – that are issued to help manage the federal government. There is no authoritative definition of “executive orders” that distinguishes them from “presidential memorandums,” “presidential proclamations,” or – as in the case of the George W. Bush first directive on military commissions – just “orders.” The Federal Register Act lumps them together with “presidential proclamations” as documents that, with some exceptions, must be made public.

    Although some news outlets reported that President Obama signed 23 executive orders relating to gun violence in America, he actually signed only three. Although they were called, “Presidential Memorandums,” two, at least, were indistinguishable from run-of-the-mill executive orders in that they applied to the heads of all executive departments and agencies. The other, addressed to a single agency, takes a form that would typically be called a “memorandum.”

    Executive orders, like any other form of presidential initiative, must be rooted in some form of legal authority. Some are issued in the President’s constitutional chief executive capacity, and set forth managerial requirements for specified federal operations. Some are issued pursuant to explicit authority delegated to the President by statute, or are issued as a way of complying with obligations Congress has imposed on the President or the executive branch more generally.

  • January 16, 2013

    by Jeremy Leaming

    Under increasingly outrageous attacks from the National Rifle Association, President Obama announced what The Huffington Post describes as “the most sweeping effort at gun control policy reform in a generation.”

    The president called for expanded background checks to include those obtaining guns from private sellers and gun shows, a ban on military-style assault weapons and armor-piercing bullets and a limit on high-capacity ammunition magazines. He also vowed to use executive orders to help stem gun violence.

    “In the days ahead, I intend to use whatever weight this office holds to make them a reality,” Obama said. “If there’s even one life that can be saved, then we’ve got an obligation to try.” (The White House’s website includes more information about the proposals; click on picture for video of president’s remarks.)

    The administration’s proposals follow New York’s enactment of some of the nation’s toughest measures to curb gun violence. Among other actions, the NY SAFE Act, signed into law by Gov. Andrew Cuomo, bans assault weapons and magazines that can hold more than seven rounds and requires instant background checks on all ammunition purchases.

    As noted here, and by The New York Times columnist Charles M. Blow, it is not only the NRA that is ratcheting up its attacks on efforts to curb gun violence. Extremists have jumped into the fray threatening violence over efforts to enact new gun control laws. As Blow wrote, they are employing incendiary language to stir up fear that the government is on the verge of trashing the Second Amendment and confiscating guns. He cites several examples, such as Fox News analyst Andrew P. Napolitano, who claimed that the Second Amendment was created to “protect your right to shoot tyrants if they take over the government.”

    Regardless of what extremists think of the Second Amendment, the Supreme Court has recognized an indiviudal right to own guns, but not it is not an unlimited right. Constitutional law expert Geoffrey Stone pointed out recently in a piece for The Huffington Post, that the Supreme Court majority in D.C. v. Heller, stated “the right secured by the Second Amendment is not unlimited,” and went on to note a string of common sense gun regulations that does not run afoul of the Second Amendment.

  • January 14, 2013

    by Jeremy Leaming

    Despite the reality that President Obama took no action during his first term to advance gun safety or sensible gun control measures, gun enthusiasts convinced themselves, with the help of right-wing pundits, that the president is not only a socialist but a budding tyrant preparing to confiscate gun owners’ arsenals from coast to coast. And this caricature has been a boon for gun manufacturers and sellers.   

    Over the weekend, The New York Times reported sales of guns, “which began climbing significantly after President Obama’s re-election,” have “soared” since the mass-shooting in Newtown, Conn., and the high-profile discussion of enacting gun safety regulations. An Iowa “independent gun dealer” told the newspaper, “If I had 1,000 AR-15s I could sell them in a week.”

    And now that the president and other lawmakers, such as N.Y. Governor Andrew Cuomo, Md. Governor Martin O’Malley and Colo. Gov. John Hickenlooper, are taking steps to enact gun control measures, gun enthusiasts are becoming louder, some hysterical and others going ballistic.

    The National Rifle Association has been predictable and lame. The group blamed the arts, such as movies, for spurring gun violence and argued that more guns are the solution. In late December, the group’s Vice President Wayne LaPierre, said armed guards should be placed in the nation’s schools. James Yeager of a Tennessee company that apparently trains people to use weapons said in a YouTube video that if the president issued an executive order promoting gun safety that he would “start killing people.” Other chuckleheads have taken to the airwaves to threaten violence if the government were to take any action to curb gun violence.

    What this period of discussion about the nation’s obsession with guns and how to take some measured steps to curb gun violence has exposed, in part, is that the gun lobby is growing tired and extremists are jumping into the fray. Many of these gun lovers believe that the Second Amendment is absolute. First, very few things in life are absolute and certainly there are very few if any rights provided by the Constitution that are absolute. For instance, the First Amendment does not protect all speech and expression. Political speech is provided more protection than commercial speech, speech advocating illegal conduct is not wholly protected under the First Amendment. What about the Fourth Amendment. We know that not all government searches are illegal. Indeed the Fourth Amendment has a lot of exceptions for police officers, acting in good faith and under certain circumstances, to conduct searches and seize property that many would argue are unconstitutional.

    I could go on, but the point is that the Second Amendment does not forbid the regulation of guns. It is likely too much to ask of many of the rabid gun enthusiasts to read D.C. v. Heller, the U.S. Supreme Court decision that held an individual does have the right to “keep and bear arms.”

  • January 7, 2013

    by Jeremy Leaming

    It can be difficult to follow with great interest the machinations in the nation’s capital, especially with divisive, often ridiculous debates that unfold and then are taken to a whole new level by loud pundits dominating airwaves. But when cynicism sets in, as it has within parts of my family, there’s almost no room for serious, calm conversation about policy that is actually being advanced in the confines of the beltway.

    Over the winter break I had the great fortune of seeing three of my brothers, two of whom I rarely get to see anymore. One brother, who has veered from libertarianism to socialism, has written off the entire political process. President Obama is a tool of Wall Street, it would not have mattered had Mitt Romney won the White House, they both represent the same interests, he would say. He scoffed at the Affordable Care Act – no public option, no expansion of health care to the needy – and at the extension of unemployment benefits that has occurred under the Obama administration’s watch. In my brother’s mind the entire system was bought by big corporations a long time ago and they pull all the strings of both major political parties. But I wasn’t all that surprised – he’s been regurgitating the late comedian George Carlin’s stinging, though simplistic, lines about a broken American government for many years now.

    The reality is that the American political process is messy, incredibly divisive and often terribly exhaustive and inadequate. But the constant carping about how bad politicians are is also tiring and irrelevant. When hasn’t our democracy been a messy, maddening affair? Sure there have been respites, but they often don’t last long. It’s a fairly large country, and regardless of Carlin’s jabs, we do and have had some remarkable politicians and heroic leaders for equality and civil rights.

    And regarding the Obama administration’s first term, a little research would reveal that it is wildly over-the-top to blast it as a tool of big business. As The American Prospect’s Jamelle Bouie notes, Obama’s first two years in office “are a good case study of what happens when Democrats have control of the federal government – they try to expand it. In those two years, Democrats greatly expanded the welfare state with a new, quasi-universal health-care program, funneled hundreds of billions of dollars to infrastructure and clean energy research, and implemented a host of new financial regulations. There’s a reason Time correspondent Michael Grunwald called his book on the stimulus The New New Deal – in both size and scope, the activity of Obama and the 111th Congress resembled that of FDR’s first term.”

  • December 6, 2012

    by Jeremy Leaming

    So the Senate is making some progress on confirming judges, but that progress should not mask the reality of a politicized process that has created a high vacancy rate on the federal bench. The 113th Congress has plenty of work on its plate, and it should include fixing the judicial nominations process that has hobbled the judicial system.

    Though the Senate confirmed two district court judges today – Mark Walker and Terrance Berg – both were approved months ago by the Senate Judiciary Committee. But Republican senators have throughout Obama’s first term greatly slowed the confirmation process, even for district court judges. This year, many Republicans claimed that during a presidential election year fewer judges should be confirmed, so the backlog of judges to be confirmed continued to swell, with more than 80 vacancies on the federal bench. Some Republican senators are now claiming that it is very rare for judicial nominations to be considered during lame-duck sessions of Congress. Sen. Chuck Grassley, as noted here recently, lauded his colleagues for allowing floor votes this week on a few of the pending judges.

    But Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) blasted Republicans for making the wobbly claim that judicial nominations should not be considered during lame-duck sessions. “I urge them to reexamine the false premises for their contentions and I urge the Senate Republican leadership to reassess its damaging tactics,” the senator said in a Dec. 6 statement. “The new precedent they are creating is bad for the Senate, the federal courts, and most importantly, for the American people.”