Wednesday, January 16, 2013

Did Obama Violate the Constitution and/or the law and commit Impeachable Violations?

Obama's actions signing Executive Orders may not only be illegal but could even be constitutional violations justifying impeachment, former Attorney General Ed Meese warned in advance of the actual announcements today.

So did Obama actually cross that line or not?  Did he heed Meese's warning and tone down any previous internal plans.  Did Obama violate the law and US Constitution today on January 16, 2013?

As numbered by Fox News, Obama listed 23 executive actions he is taking:

This is an analysis of each of the 23 Executive actions, although this is based only on the headlines. A thorough study of the actual Executive Orders, the full text, would be needed to gie a thorough, final answer. Some of the headlines are incomprehensible standing alone.
 1.Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.

ANALYSIS:   The President has the authority as the head of the Executive Branch -- the boss of employees -- to order his employees in how they do their work.  Here, it appears that President Obama is ordering his employees in the Executive Branch to stop doing a sloppy job.  That is legal and constitutional.

However, the kind of data involved is often governed by many different laws, such as the Privacy Act and HIPPA.  Obama cannot order government bureaucrats to take actions that do not comply with those laws.

 2.Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.

ANALYSIS:  This is unclear.  Obama cannot change or remove legal barriers.  Only Congress can do that by legislation... unless those legal barriers were created by government regulation in the first place.  Obama can remove regulatory barriers that exceed what the law requires, to bring the Executive Branch into closer faithfulness to the law.

 3.Improve incentives for states to share information with the background check system.

ANALYSIS:   Obama cannot by Executive Order provide any financial incentives or preferntial treatment in the law for States.

 4.Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.

ANALYSIS:  As the boss, the President can order the Attorney General to review things and report back the results of a study.

 5.Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.

ANALYSIS:  It is proper for government departments and agencies to issue regulations ("rulemaking") to implement laws passed by Congress.  It is illegal for the government to promulgate (issue) regulations that exceed what a Congressional law authorizes or requires.  So Obama cannot lawfully change the law by ordering a regulation to be issued, unless that is what a law passed by Congress already permits.

Here, Obama is not ordering his own employees as the boss (the meaning of an Executive Order) but is purporting to authorize State and local law enforcement to run a full background check.  While States would probably have the authority to do that on their own (if they haven't already), The President by Executive Order cannot authorize State and local law enforcement to run a background check on anyone.

This is likely to be challenged when someones gun is seized.

 6.Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

ANALYSIS:  The President can publish letters.

 7.Launch a national safe and responsible gun ownership campaign.

ANALYSIS:  The President cannot spend taxpayer funds on any such campaign unless funds are authorized and appropriate by Congress.  Obama can go around giving speeches himself.  He may be able to divert some relevant appropriated funds that are available for very similar uses already.

 8.Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).

ANALYSIS:  The President can order his employees to study things.  However, it is unlikely in my experience in the bureaucracy that the CPSC will actually do this using its own personnel.  The bureaucracy will want to hire consultants and enter into contracts to have other people study the question.  That would require funds authorized and appropriated by the Congress.

 9.Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.
ANALYSIS:  The President as the boss of Federal employees can order them how to do their jobs, if consistent with governing laws.   It would appear that if federal law enforcement is not already tracing guns recoverd in criminal investigations -- I'll bet my straw hat they already are -- the boss can order his employees to stop being sloppy.

10.Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.

ANALYSIS:  The President can release reports.

 11.Nominate an ATF director.


 12.Provide law enforcement, first responders, and school officials with proper training for active shooter situations.

ANALYSIS:   This would appear to be legal, but it probably will require the expenditure of taxpayer funds, which must be authorized and appropriated by Congress.  There are related or similar programs already.  But this would seem to mean that Obama is going to change the criteria for how those program funds are spent.  That may violate the purposes and conditions set up by Congress.

 13.Maximize enforcement efforts to prevent gun violence and prosecute gun crime.

ANALYSIS:  What exactly does this mean? 

 14.Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.

ANALYSIS:  Again, the President as the boss can issue orders to his own employees.  But this would appear to require spending taxpayer funds without money being authorized and appropriated by Congress.  The President cannot do that.

 15.Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies.

ANALYSIS:  The President as the boss can order his Attorney General, whom he appointed and whom serves at the pleasure of the President, to research something and issue a report on it.

 16.Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

ANALYSIS:  The President has no authority to clarify or modify a law.

 17.Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

ANALYSIS:  The President can write letters to people, and people might possibly even believe what the letter says.  However, the President cannot change Federal law by doing so.

18.Provide incentives for schools to hire school resource officers.

ANALYSIS:  The President has no authority to provide incentives to schools because taxpayer funds must be authorized and appropriated by Congress and any change in the law granting any non-financial incentive would have to be made by Congress. 

 19.Develop model emergency response plans for schools, houses of worship and institutions of higher education.

ANALYSIS:  The President can order his employees to develop plans, including model plans.  He cannot require anyone to pay any attention to them.

 20.Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

ANALYSIS:  The President can release a letter, and maybe someone will actually believe what he says. 

However, the President absolutely cannot require the State governments to do anything, which is clearly unconstitutional (says the US Supreme Court)

 21.Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.

ANALYSIS:  The President as the boss can order his employees to knock off the coffee breaks, get to work, and finish a task that they are lawfully permitted or required to perform.

 22.Commit to finalizing mental health parity regulations.

ANALYSIS:   Same as 21, although "commit" is like making a New Year's Resolution to stop smoking.

 23.Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.

ANALYSIS:  President Obama can talk.