News reports say that the Obama administration is considering a number of steps it might take to advance the cause of gun control. This tends to get conservative constitutionalists worked up, because they worry that the administration might trample on separation of powers, using executive orders to contradict or get beyond the law. There is reason to worry: Obama has shown himself to be no strict observer of the Constitution when it seems to stand between him and something he would like to do (see, for example, going to war in Libya without Congressional authorization).
If you look at the steps being considered in the present case, however, they all seem to be within the executive’s purview. What interests me is one in particular, not because it is illegitimate, but because it is perfectly legitimate, and its legitimacy points out the error of arguments that the administration has made in the past to absolve itself from things for which it really is responsible.
One of the proposed steps is an executive order to foster more aggressive enforcement of existing gun laws. Now, such an order would have to be directed at the Department of Justice, or organizations under its direction. Such an order cannot help but interfere with, by directing, the operations of the Justice Department. So whatever happened to the supposed “independence” of the Justice Department, of which we have heard so much over the years? When people were critical, for example, of the Attorney General’s decision to try terror suspects in civil courts in the United States, they complained to the president, asked him if he had approved the decision, and whether he would reverse it. Came the answer, pronounced in tones of political piety: “It would be inappropriate for the President to try to interfere with the operations of the Justice Department,” because it is “special” and is supposed to have some kind of “independence” from the President.
In fact, that position (which, I should observe in fairness to the president, has also been advanced by some misguided Republicans) was and is balderdash. The Justice Department is part of the executive branch. The Attorney General is an executive officer serving under the president. The president is the chief executive and has as much right to interfere with or direct the actions of the Justice Department as he does the Department of Defense or State or whatever. He’s the boss. They all work for him.
I think that one source of this misunderstanding is the trauma inflicted on many minds President Nixon’s misbehavior in the Watergate scandal. Nixon interfered with the operations of the Justice Department in order to protect some people in his administration from a criminal investigation. That was, indeed, an abuse of his power. Had he not resigned, the proper punishment for that misconduct would have been applied to him: impeachment. But — and here is the key point — Nixon abused powers that he really did possess as president. The fact that he abused them does not mean that they are not in fact presidential powers.
A president might well abuse his powers as commander-in-chief. If the abuse were serious enough, it might be proper to impeach him and remove him from office. But it would make no sense to start proclaiming some novel “independence” of the Department of Defense that would diminish the legitimate powers of all future presidents.