This week, Rep. Nancy Pelosi, Minority Leader of the House, joined a chorus of other elected officials calling for legislation prohibiting access to assault weapons. As the New York Times reports, Ms. Pelosi says, "If lawmakers balk, take the issue to the public."
Pelosi continues saying it would be nothing less than a "dereliction of duty" for Congress not to act in the face of the horrific killing of 20 children and six adults at an elementary school in suburban Connecticut last month.
Ms. Pelosi is wrong. If lawmakers balk, the president needs to issue an executive order. Another president, Bill Clinton, signed an executive order in 1999 to bring troops to Kosovo. Mr. Clinton didn't wait for a formal declaration of war to initiate troop presence nor did either President Bush, or any other president since Harry Truman. In fact, the last time there was a formal declaration of war was World War II. Yes, that's right, no president has waited for Congress to sign a formal declaration before committing service members to the theater of war since 1942.
So, in effect, every war since 1942 has been at the discretion of the commander-in-chief, or effectively war by executive order.
And, executive orders aren't anything new. They date back as far as 1785. Abraham Lincoln issued close to 50 executive orders in 1862 alone, including one that prohibited the export of arms and munitions of war, so if Mr. Obama, as has been suggested, looks to Abe Lincoln as a mentor, then why not issue a directive reinstating a ban on assault rifles?
Nearly a hundred years after Lincoln issued about three executive orders a month, the Supreme Court struck down a directive from Harry Truman requiring all steel mills to be under federal control. In its ruling, the Court held that the president doesn't have the authority, under the Constitution, to make laws, but does he have the authority, under the Constitution, to make wars? That hasn't stopped every president after Harry Truman from doing so.
We know that Mr. Obama, a constitutional lawyer, doesn't want to be accused of executive overreach, but he wasn't concerned about that when, in 2012, he allocated more than $115 billion to be spent on two wars, Iraq and Afghanistan, neither of which has met the constitutional requirement of a formal declaration of war.
So, let's make this simple. The president can simply use his power as chief executive to reinstate the assault weapons ban, originally drafted by Senator Dianne Feinstein and signed into law by President Clinton in 2004, that was allowed to lapse in 2004, and make it permanent. He may then send a directive to Congress to tweak the original measure in ways consistent with Senator Feinstein's current measure, and any other bills currently before the House.
Yes, an executive order that can be amended by Congress just as Congress amended President Clinton's executive order which brought troops into Kosovo. Those so-called amendments came in the form of a national defense authorization act.
President Obama, like President Lincoln before him, would prefer to let this measure play out in Congress, but even President Lincoln recognized the need to issue an executive directive, and the need has never been greater for Mr. Obama to use the authority vested in his office by Article II of the Constitution.
After all, there is no way that a man as erudite and savvy as Mr. Obama can believe, even in his wildest dreams, that any serious measure restricting access to firearms will make it through Congress, given the political demographics of the House, so not issuing a directive would be tantamount to dereliction of duty.
And, it wouldn't be the first time this president has used the authority of his office to make a difference in the outcome of a precarious situation. Witness how he handled General Motors and Chrysler. Time now to handle Smith and Wesson the same.
If it isn't considered executive overreach for a president to send young men and women into harm's way without first obtaining congressional approval, it is no more executive overreach for a president to take a decisive, and definitive step to protect the lives of many thousands of Americans of all ages, races, genders, and socioeconomic backgrounds who die on our streets every day.
Understood that this president respects the process, but targeted killings are not part of the Constitution nor is unlimited detention without due process. If one is going to respect the process, one can't do so selectively.
The American people don't need to see a president delivering a gun control measure into their hands. There needs to be a deadline and, if Congress doesn't act by that date, Mr. Obama needs to use his authority as chief executive to ensure that a ban on military-style assault weapons is once again the law. It's up to him, and only he will do it.