I don’t get it. I mean, I get that President Overreach has contempt for the idea that new laws are supposed to originate with Congress, not him. What I don’t get is why it took him this long to try something like this.
The timeline in brief: On Monday, Hillary announced that she’d use executive action as president to reduce the number of private gun sales conducted without a background check. The way she planned to do that was by “clarifying” what it meant to be “engaged in the business” of selling firearms for purposes of federal law. The fear is that some people are selling guns regularly but sporadically and in low enough volume that they can claim, if prosecuted, that they’re not really “in the business” of doing so. Hillary wanted to define the term to put a number on it — sell 25 guns, say, and you magically become an official gun dealer as a matter of federal law, which means you need to start doing background checks on everyone you sell to. The left naturally stood up and cheered the idea even though none of the mass shootings over the last few years that have drawn public attention to gun control have involved this sort of sale. As it turns out, the Obama White House had considered exactly this same sort of “clarification” as part of Obama’s executive actions on gun control after Sandy Hook in 2013, but they had ruled it out at the time — for sound prudential reasons, notes Greg Sargent:
The Obama administration looked at this idea, officials tell me, studying whether “engaged in the business” could be defined with, say, a threshold number of guns sold — say, 50 or 100 per year. If this were done, those who identify as private sellers (and sell without background checks) but sell that many guns could no longer do so without getting a license and performing background checks.
But the idea quickly presented complications. One former administration official involved in these discussions tells me that some officials worried it would present new and unforeseen enforcement problems. One senior administration official says some worried internally that defining a commercial seller through a hard sales threshold — as opposed to, say, leaving it to the discretion of law enforcement to determine who is a commercial seller — could be subject to legal challenge and could end up sweeping in people selling guns who clearly were not engaged in it as a long term business. This could create untold logistical — not to say political — difficulties.
You can understand why the White House would be reluctant. Once there’s a hard number to define being “in the business” of selling firearms, prosecutors will need to spend more resources tracking every sale by a small-quantity seller in the name of proving he’s hit that number. They have bigger fish to fry, which means that — ironically — some sellers who might otherwise have drawn attention from prosecutors for regular gun sales might now be ignored precisely because they haven’t quite hit the numerical threshold. Meanwhile, and also ironically, a vague threshold for how many gun sales are too many for legal purposes is a better deterrent than a hard number like 50 or 100 per year would be. Under the current rule, if you sell, say, 30 guns a year — two or three each month — you might reasonably worry that your repeated, regular sales mean that you’re “in the business” for purposes of federal law. Simply to protect yourself, you might insist on a background check for those purchasers. With a hard floor of 50 sales to qualify as being “in the business,” you don’t need to worry about background checks so long as you know you won’t sell 50 weapons. In some cases, in other words, a hard number may lead some sellers to be less cautious.
So there are obvious reasons not to do this, which is why the White House passed on it once before. But now, because Hillary’s momentarily made it a “do something!” liberal cause celebre, Obama apparently feels he needs to do something:
In response to the latest mass shooting during his presidency, President Obama is seriously considering circumventing Congress with his executive authority and imposing new background-check requirements for buyers who purchase weapons from high-volume gun dealers…
In the wake of last week’s tragedy, Obama said he had asked his team “to scrub what kinds of authorities do we have to enforce the laws that we have in place more effectively to keep guns out of the hands of criminals.”
“We are hopeful we can find a way to do this,” said one senior administration official, who noted that lawyers were still working through details to ensure that the rule could pass legal muster. “It’s a lot more clear today than it was a year ago how to work this out.”…
White House officials drafted the proposal in late 2013 to apply to those dealers who sell at least 50 guns annually, after Congress had rejected legislation that would have expanded background checks more broadly to private sellers. While the White House Office of Legal Counsel and then-Attorney General Eric H. Holder Jr. initially concluded the regulation was legally defensible, according to several individuals involved in the discussions, some federal lawyers remained concerned that setting an arbitrary numerical threshold could leave the rule vulnerable to a challenge.
Back to the beginning, then: Why’d Obama feel obliged to move on this now? He’s a lame duck who has nothing to fear from the left. He ruled out the idea once before on logistical grounds. Enacting the new rule now steals some of Hillary’s thunder by obviating one of her campaign promises (“he’s helping Biden!”), but it also lets her boast on the trail that her idea was so good that the president decided to put it in force ASAP (“he’s helping Hillary!”). My theory, which is always my theory with Obama nowadays, is that it’s a pure legacy thing. He doesn’t want to leave office with liberals grumbling that he didn’t do every last thing he could have to limit gun sales, even if it means small-potatoes gestures like this. So he’s going to do it. And gun sales, naturally, are going to explode again among gun aficionados once he does. The left gets its stupid feelgood “we did something!” empty gesture and gun owners get a few hundred thousand more guns in circulation. Everybody wins, I guess.
By the way, since we’re on the subject of Obama doing things he has no legal power to do, if you missed it in Headlines earlier you should read this Fox News piece by James Rosen arguing pretty convincingly that the part of the Iran nuclear deal that lets foreign-based subsidiaries of U.S. companies trade with Iran is actually barred by a federal statute that was signed by Obama himself. The story didn’t get much feedback in Headlines for the same reason that I’m not interested in writing a post about it — legal or not, Obama will find a way somehow to implement that part of the deal anyway. At least, that is, until federal courts decide that the executive branch has amassed so much power that it can no longer afford to wave off court challenges to the president’s authority by Congress as “political question” matters. Wake me when the Supremes step in.