Althouse: "President Obama is again disregarding the constitutional principles of separation of powers and exceeding his authority as chief executive."

January 7, 2016

"President Obama is again disregarding the constitutional principles of separation of powers and exceeding his authority as chief executive."

"The Obama administration issued guidance creating uncertainty and fear of prosecution for law-abiding citizens who wish to exercise their right to sell firearms lawfully. Forthcoming federal rules could also deprive millions of Americans of their Second Amendment rights without any indication of imminent danger... I have asked the attorney general to review this proposed rule language as soon as it is made available and, if issued as reported, to take any and all legal measures available to challenge this illegal act."

Said Wisconsin Governor Scott Walker.

37 comments:

traditionalguy said...: Do we hear the opening shots in the 2020 campaign. Scott had better hurry while he has hair left.; 1/7/16, 8:27 AM
Henry said...: According to this, President Obama declared an Executive Action rather than an Executive Order which creates a much more opaque situation.; 1/7/16, 8:29 AM
Birkel said...: Governor Walker should have couched his statement a bit more carefully. He should not presume that Obama has done anything of import, first of all, because Obama is likely to have only created headlines with no underlying substance.

Meanwhile, Obama's mainfest failures continue apace.; 1/7/16, 8:36 AM
Beloved Commenter AReasonableMan said...: Who is this Walker, Scott, of which you speak?; 1/7/16, 9:18 AM
David Begley said...: Good role for Walker. Calling out our lawless President.; 1/7/16, 9:28 AM
James Pawlak said...: I have only two questions for Obama:
1. Do you want a blindfold; Or,
2. Do you have anything to say before sentence is executed on you?; 1/7/16, 9:34 AM
Mark said...: Has he paid the taxpayers back from the state troopers that flew around with him?

Last I heard he was over $500,000 in debt to the taxpayers .... And he wastes more money on tilting at windmills here?; 1/7/16, 9:43 AM
steve uhr said...: The law regarding who must conduct background checks at gmail shows is vague and the penalties for violations is substantial. It is the job of the administration to state clearly its enforcement criteria.

I'm tired of hearing 2nd amendment supporters say that Hilary would take away everyone's guns if elected. The rulings b SCOTUS would not allow it. Just a scare tactic.; 1/7/16, 9:47 AM
steve uhr said...: Isn't Walker, a non lawyer and college drop out, putting the cart before the horse? Shouldn't he first ask the state AG for an opinion on the legality of Obama's action? Is it the role of the AG to blindly agree with Walker's conclusion that the action is illegal?; 1/7/16, 10:03 AM
mccullough said...: Obama is trying to ignore the Firearm Owners Protection Act's definition of "engaged in the business" of selling firearms. Under the 1968 Gun Control Act, "engaged in the business" was not defined. The federal appellate courts split on the issue, with the majority approach adopting a set of factors to consider in determining if a seller was "engaged in the business" of selling. The 1986 law adopted the majority approach but actually made the definition more narrow by saying engaged in the business means selling "in the regular course of a trade or business with the principal objective of livelihood and profit through the repetitive repurchase and sale of firearms". This stricter definition he definitional elements is that the "principal motive" of the seller was profit. Under the case law, it was "a motive." So a sale of three firearms over a two year period can't lead to a convict as an "unlicensed dealer" as it had under the 1968 Act.

So basically Obama is trying to deter private sales among law abiding citizens by threatening prosecutions that can't be sustained under his regal authoritarianism. Meanwhile, his administration has brought significantly fewer federal gun crimes prosecutions than W's administrations. In Illinois, state legislators like Obama refused to tighten the penalties for state gun crimes because they have a "disparate impact" on blacks who disproportionately commit gun crimes and who are also disproportionately the victims of gun violence.

This petulant, imperial asshole's term can't be over soon enough. He has done more to erode belief and adherence to the rule of law than any politician since Nixon (Hillary will probably surpass him).; 1/7/16, 10:05 AM
Anonymous said...: Given the headlines Mr. O. created the governor has to go more extreme than Mr. O. If only to get noticed and generate the appropriate pushback. Abscond with some fraction of the Dem. congress and sequester them in a bad motel. Better yet, go after anyone in Wisconsin that has family or other ties to Mr. O. and start secret court procedings that are unveiled just before the election. Ask "what would Mr. T. of the A. team do?"

Else it doesn't warrant popcorn. Shucks.; 1/7/16, 10:06 AM
cf said...: I thank the Call of the Most High Good for the clarity and courage of Scott Walker.

Godspeed, America; 1/7/16, 10:16 AM
garage mahal said...: Walker concerned about alleged "illegal act." Too funny for words.; 1/7/16, 10:19 AM
khesanh0802 said...: Let's advance gun control measures while we ignore Iran's duplicitous behavior - not to mention North Korea. I thought Jimmy Carter was just incompetent, but meant well. Obama is incompetent and doesn't mean well at all. Why are the MSM and pollsters surprised that there are a lot of pissed off people in the country.; 1/7/16, 10:29 AM
mikee said...: Obama's proposed actions and executive orders were secondary, in my opinion, to his bold and unprecedentedly strong expression of a presumed moral equivalence between law-abiding owners of legal guns and violent criminals or psychopathic mass murderers.

I was unaware that my ownership of firearms makes me the same as the nutcase who shot up the Aurora theater, or the jihadis in San Bernadino, before Obama's speech. Now I am aware that at least he, himself, is sure of this about me.

Heck, he even said Congress was holding the nation "hostage" over guns.

Civility in political discourse? Not with that lying demagogue in the White House.; 1/7/16, 10:49 AM
Bruce Hayden said...: I don't think that there is that much difference, in the end, between an executive order and an executive action. The big thing to remember is that if something has not gone through either the legislative process or the formal (APA) rule making process, it doesn't apply to those of us who are not employed by the executive branch of the federal govt.

For the most part, I thought that Obama's actions were pretty weak. He started out by putting more ATF agents in the next budget. This is, of course, DOA, in a Republican Congress, after the agency stonewalling Congress after Fast and Furious. And, the fact that they didn't fire the guys behind it, but rather, ultimately, they promoted them.

The biggest deal was probably claiming that more people should be considered in the business of selling guns. I should have probably said "pretending" instead of "claiming", because this is something that can be done legislatively or maybe via regulation, but otherwise what the President says is mostly just hot air. They are caught between a rock and a hard place here - you can only get federal background checks if you are a FFL, so to increase the number of people needing background checks, you pretty much have to increase the number of FFLs (or illegally deny people not in the business of selling guns from selling guns), which runs counter to the Clinton era movement to greatly limit the number of FFLs. Currently, as I understand it, at a minimum, you need a storefront for an FFL. They would, of course, want to reduce the number of people who need to get background checks, but cannot legally do so without either allowing more FFLs or (illegally) changing the class of people who don't need such.

They do want to move some FBI agents into the area, and I think that is fine. The 3 day limit to how long they can take to clear an applicant is statutory, which means, of course, that there is nothing that Obama can do about it without changing the law. The number of people buying guns has ballooned in the last years, and esp. the last couple of months. This is something that Obama could do, and probably should, because underfunding (and, therefore, undermanning) this makes it more likely that those unqualified to buy guns won't be rejected. That is something that most of us can get behind. And, I like the idea of removing the requirement (if they can) that the chief LEO for a jurisdiction sign off on NFA items (like silencers, SBRs, etc), since some CLEOs were blanket denying such for political reasons. Not sure how something so pro-gun rights ever got included.; 1/7/16, 10:49 AM
Bruce Hayden said...: I think that the thing that bothered me the most here was how blatant Obama was in his lying before the American people. Apparently, the thought must have been that he could say anything he wanted, as long as he had tears running down his cheeks.

Let us clear things up right now. No, you can't buy guns over the Internet without a background check. Why? Because if you buy firearms except face to face, you need to pick them up through an FFL, and they won't turn them over to you without a background check. If you buy a gun over the Internet, it must be shipped to an FFL, and if it is a handgun, the FFL has to be in your state of residence. The seller cannot ship the gun to you. Indeed, it is worse than that - not only can the seller not legally ship to you, but the only way to ship, through FedEx and UPS, the shippers won't ship guns to anyone except FFLs (even if you are shipping to yourself, as I did last summer). And, of course, if you aren't shipping to yourself, anything you ship to an FFL must have a background check. Its a pretty foolproof system.

The only real exception are in-person transactions where the seller is not in the business of selling firearms, and, therefore is not, and cannot be (which is one of the things that they seem to forget) a FFL. Yes, you can hook up over the Internet, but you have to meet physically to actually conduct the sale.; 1/7/16, 11:01 AM
jaydub said...: Ever notice how the mention of "Scott Walker" instantly awakens the left wing and forces them to comment on this blog? It's amazing to me. They could no more let a comment about Scott Walker go unremarked than a Chinese tourist could avoid spitting on the sidewalk.; 1/7/16, 11:21 AM
HoodlumDoodlum said...: Bruce Hayden said...And, I like the idea of removing the requirement (if they can) that the chief LEO for a jurisdiction sign off on NFA items (like silencers, SBRs, etc), since some CLEOs were blanket denying such for political reasons. Not sure how something so pro-gun rights ever got included.

I wondered about that too, Bruce, and I think it's just a consequence of requiring fingerprinting/background checks of the trust owner--if the trust is going through a background check like an individual would then there's no logical reason to require CLEO approval for the trust, since that requirement doesn't exist for an individual. I think the logic is that the trust can't be MORE restrictive than the rules for an individual, which makes sense. I doubt it was an intentional action/outcome, since for that to make sense the Admin would have to believe that lots of people set up trusts to avoid getting fingerprinted because that'd uncover some illegality, and I really doubt that's the case (how many criminals do you think go to the trouble to set up trusts, really)?

The only drawback that comes to mind right away is that for people who didn't have a problem with their CLEO this might make transfers more time-consuming (since before they didn't need to take any other steps). Overall it still seems like a positive development.; 1/7/16, 11:31 AM
steve uhr said...: Jaydub. And the right wing doesn't comment when Hillary is the topic?; 1/7/16, 11:34 AM
HoodlumDoodlum said...: My gut reaction is to be grateful to all the politicians coming out against any action by the Obama admin that might harm legal firearm ownership/the legal firearm market, but honestly these proposals do so little I almost wish the NRA et al. had just said "meh, nothing to it" and by so doing pointed out how weak a move this really is. Knowing his actions would provoke this response lets Pres Obama look like he's making big moves, but other than the additional spending and extra FBI agents (which could have been done, of course, at any time) there's really not much concrete to these proposals.

It's political theater, largely, and I guess the pro-gun side is playing their part, but I wish the Low Information folks could get a sense of just how hollow all of this really is.; 1/7/16, 11:34 AM
Simon said...: Is he? Which provisions specifically are unconstitutional? I hate this stupid, overheated rhetoric. Tell me specifically what you think the President is doing, support it with a citation of the text, and tell me specifically what constitutional provision or doctrine is violated. Otherwise it's just empty political rhetoric.; 1/7/16, 11:38 AM
Monkeyboy said...: I think that the thing that bothered me the most here was how blatant Obama was in his lying before the American people.

When I first read 1984 I wondered why people believed that they had always been at war with Eurasia when yesterday they were told they were always at war with Eastasia.

Now I don't wonder, they know perfectly well that they are being lied to, they just don't care. Being seen participating in the hate is important, not the truth.; 1/7/16, 11:40 AM
Rusty said...: steve uhr said...
The law regarding who must conduct background checks at gmail shows is vague and the penalties for violations is substantial. It is the job of the administration to state clearly its enforcement criteria.

I'm tired of hearing 2nd amendment supporters say that Hilary would take away everyone's guns if elected. The rulings b SCOTUS would not allow it. Just a scare tactic.

You're right. But the rules promulgated by unelected bureaucrats can and do place an undue burden on the average citizen to comply. So in effect, when people throw up their hands and decide the result is not worth the effort, is defacto gun control.
Since we let the government into our healthcare decisions we place them at our doctors shoulder. The mentally ill should not be allowed access to weapons. We can agree on that. But who gets to determine who is mentally ill? Your doctor? Or your doctor and the federal government. How long will it take for the government to determine that if you own firearms you are mentally ill? I'm gonna bet sometime before Obama leaves office.; 1/7/16, 11:56 AM
mccullough said...: Simon,

The executive branch can't prosecute people who haven't committed a crime. To do so violates the due process clause of the 5th Amendment. The executive branch also can't change the definition that Congress has put into a statute. That violates the separation of powers principle, which is part of the sructure of the Constitution (Congress has legislative powers, President has executive powers).

You can also say the President violated his Article II responsibility to faithful execute the laws Congress passed. Obama has a habit of violating this clause as well as separation of powers. His granting amnesty to millions of illegals is the most egregious example. His gun proposal is just he most recent example.; 1/7/16, 12:35 PM
jaydub said...: " And the right wing doesn't comment when Hillary is the topic?" Yes, they do, but a) she's still running for president and b) they comment on non-political topics, too. With the left commentators there's Pavlov's dog-type reaction to anything to do with Walker, kind of like dragging an EBT card through an SEIU meeting. It's just a totally predictable, salivating reaction.

Just an observation - didn't mean to offend.; 1/7/16, 12:44 PM
HoodlumDoodlum said...: Taranto in the WSJ Best of the Web yesterday (I think) made the interesting point that the Obama Admin. trying to expand the coverage of being "in the business of" selling firearms is the exact opposite of what the Clinton Admin. did--under Clinton there were around a quarter million FFLs, mostly people without stores or significant sales who just wanted to be able to buy at wholesale and get around some red tape. The Clinton Admin moved to restrict FFLs to people who actually deal firearms as a job (or a significant part of their income). The # of FFLs dropped to around 55k. The Obama Admin. is threatening to do the opposite of the Clinton Admin in that they're saying people who aren't really "dealers" but make some sales should have to get FFLs.

Ah, government.; 1/7/16, 1:02 PM
Bruce Hayden said...: I didn't read the Administration's new interpretation of the statutes to be much more than window dressing. They don't get to interpret statutes - that is done by the courts. They can publish what they think the interpretation should be, but that has no legal import. Of course, they probably only get to the interpretation they think is applicable by ignoring significant aggravating circumstances in the case law. So, yes, you can maybe be considered a gun dealer if you are a gang banger engaging in straw purchases, but not for most of us at that low of a level of sales activity.; 1/7/16, 1:18 PM
n.n said...: The convictions of Mr. Pro-choice in Chief are selective.; 1/7/16, 1:23 PM
Simon said...: mccullough said…
"The executive branch can't prosecute people who haven't committed a crime. To do so violates the due process clause of the 5th Amendment."

No one says otherwise. What precisely is it that you think that the President is proposing to prosecute that isn't a crime, and where do we find that in regulations—not rhetoric—that he has promulgated?

You can't wave your hand around and refer broadly to "[h]is gun proposal"—that proposal includes such dangerous, plainly-unconstitutional things as… Ahem… Hiring more FBI agents. That's exactly the kind of empty rhetoric that I bemoaned above; your comment sounds like the kind of thing that Ted Cruz does on the campaign trail: A rote recitation of an uncontroversial principle of which everyone's aware, a vague invocation of the new idea, a heaping of seething scorn on President Obama, and the invocation of a previously-criticized Obama action. That's not good enough.; 1/7/16, 1:28 PM
HoodlumDoodlum said...: garage mahal said... garage mahal said...
Walker concerned about alleged "illegal act." Too funny for words.

Read this yesterday, surprised no mention of it yet: John Doe Prosecutor Delivers Letters to People He Spied On

The article says they've sent 159 notices out so far. Kind of a lot of people to be spied upon, no? I mean, with no actual tangible result other than the investigation being ruled unconstitutional (twice?) by the State Supreme Court. I dunno, I don't follow that state's news very closely, but it strikes me as kinda a big deal.; 1/7/16, 1:38 PM
Bilwick said...: Remember, peasants: L'etat, c'est King Barry:

http://1.bp.blogspot.com/-O2-ZSnMNts8/UHVV2_ItHKI/AAAAAAAAalA/r2gSBacSNe4/s1600/je-suis-ltat-ltat-cest-moi-obama-lincoln-louisxiv-politics-political-poster-1282239769.jpg; 1/7/16, 1:40 PM
mccullough said...: Simon,

Please read my first comment. Obama is proposing to ignore the 1986 definition of "engaging in the business" added to the statute. His proposal is to prosecute people for a handful of private sales, as had been done under the 1968 Gun Control Act because "engaging in the business" of sell his firearms was not defined and courts defined it to mean a sale that resulted in a profit, even if someone only sold three guns over two years.

The executive branch has no authority to ignore statutory language that it disagrees with. Congress decided the issue in 1986, changed the law and no Congress has changed it back to the 1968 version.; 1/7/16, 2:42 PM
Simon said...: Section 101(6) of that act, cited in your first comment, added definitions of “the term ‘engaged in the business’” that are today codified at 18 USC § 921(a)(21) . See 100 Stat. 449, 450. So that’s the first half of the equation; the other half is this: Precisely what has Obama announced his intention to do—not broad aims, not rhetoric, but the precise action itself—that violates section 921(a)(21)? You say vaguely that he has proposed “to prosecute people for a handful of private sales, as had been done under the 1968 Gun Control Act” prior to the 1986 act; what precisely did he say? Where do I find his words?; 1/7/16, 3:40 PM
mccullough said...: Simon,

Look up what he and his underlings have said over the last 6 months if you are interested. I've provided you the background, now you can do some work. Spoon feeding time is over.; 1/7/16, 6:43 PM
Simon said...: In other words, you have no answer—no specific action at which you can point that is in tension with section 921. It's just empty political rhetoric.; 1/8/16, 8:16 AM
Simon said...: I'm as bored with my side hurling overheated rhetoric at President's Obama's supposed executive excesses as I was with the other side hurling exactly the same rhetoric at President Bush's supposed executive excesses. What short memories people have. Lookit: The executive power is real, Presidents have real power; get over it. The problem with this constant "the sky is falling, the sky is falling, the sky is falling" act (apart from its contextless frivolity) is that you won't be taken seriously on the day on which a President genuinely doess overreach and do something that he can't do. When a democrat used to say "President Bush is acting like a king in regard to X," did anyone give that claim a moment's serious thought? Or did they dismiss it out of hand--"yeah, yeah, like a king, like you've been saying for seven years, yawn." Same principle.; 1/8/16, 8:31 AM