Debt Ceiling and Guns, Using Presidential Authority

By Robert Reich, Robert Reich's Blog

10 January 13

nyone who thinks congressional Republicans will roll over on the debt ceiling or gun control or other pending hot-button issues hasn't been paying attention.

But the President can use certain tools that come with his office - responsibilities enshrined in the Constitution and in his capacity as the nation's chief law-enforcer — to achieve some of his objectives.

On the debt ceiling, for example, he might pay the nation's creditors regardless of any vote on the debt ceiling - based on the the Fourteenth Amendment's explicit directive (in Section 4) that “the validity of the public debt of the United States … shall not be questioned.”

Or, rather than issue more debt, the President might use a loophole in a law (31 USC, Section 5112) allowing the Treasury to issue commemorative coins - minting a $1 trillion coin and then depositing it with the Fed.

Both gambits would almost certainly end up in the Supreme Court, but not before they've been used to pay the nation's bills. (It's doubtful any federal court, including the Supremes, would enjoin a President from protecting the full faith and credit of the United States).

Or consider guns. As Vice President Joe Biden said Wednesday, “there are executive orders, executive action that can be taken” that don't require congressional approval.

The President probably needs new legislation to reinstate a ban on the sale of military-style assault weapons, stop the sale of high-capacity ammunition clips, and require background checks on all gun buyers.

But he has wide authority to use gun laws already on the books as the basis for regulations or executive orders strengthening gun enforcement.

There's ample precedent. After a mass school shooting in Stockton, California, in 1989, George H.W. Bush issued an executive order, pursuant to the 1968 Gun Control Act, that banned imports of certain assault weapons unless used for sporting purposes. Years later, Bill Clinton by executive order banned imports of almost five dozen different assault weapons that had been modified to get through that “sporting purposes” exemption. President Obama could go even further.

To take another example, the National Firearms Act of 1934 gives a president broad powers to oversee gun dealers. By executive order, the President could tighten that oversight.

Under his law-enforcement authority the President could also issue executive orders improving information sharing among state and local law enforcement authorities about illegal gun purchases, tracking gun buyers' history of mental illness, and maintaining data on gun sales for longer periods.

The Administration has already issued a regulation designed to prevent sales of semi-automatic rifles to Mexican drug cartels. It requires stores in states bordering Mexico to notify federal law enforcement officials when someone buys two or more of a particular type of high-caliber, semi-automatic rifle with a detachable magazine. That regulation, too, could be expanded upon.

No doubt such executive orders and regulations would be challenged in the federal courts (the regulation on semi-automatic rifles is now in a federal appeals court that's expected to rule on its legality within the next few months).

But it's a fair argument that when the nation is jeopardized - whether in danger of defaulting on its debts or succumbing to mass violence - a president is justified in using his authority to the fullest.

The mere threat of taking such actions - using the President's executive authority to pay the nation's bills or broadly interpret gun laws already on the books - could be useful in pending negotiations with congressional Republicans.

They have not shied away from using whatever means available to them to get their way. The President should not be reluctant to play hardball, either.

Robert B. Reich, Chancellor's Professor of Public Policy at the University of California at Berkeley, was Secretary of Labor in the Clinton administration. Time Magazine named him one of the ten most effective cabinet secretaries of the last century. He has written thirteen books, including the best sellers "Aftershock" and "The Work of Nations." His latest is an e-book, "Beyond Outrage." He is also a founding editor of the American Prospect magazine and chairman of Common Cause.