Executive action on gun control: What that means, and what it doesn't

The coming week is a big one for President Obama's final push to tighten background checks: The White House is expected to announce executive actions, followed by a televised town hall discussion and State of the Union address. 

First Look

After paying little attention to gun control in his first term, President Obama appears determined to decrease unregulated guns sales during his final year in office. 

And many opponents, less than thrilled about gun control itself, are yet more dismayed by how he plans to do it: through executive action.

On Monday, the president is scheduled to meet with Attorney General Loretta Lynch, Federal Bureau of Investigation Director James Comey, and other officials to approve proposals to expand the definition of registered gun dealers, meant to ensure that more sellers conduct background checks on their customers. Other possibilities could include better tracking for lost or stolen firearms or toughening inspections for registered sellers.

After a young gunman killed 20 young children and 6 staff at Sandy Hook Elementary School in December 2012, gun control advocates in many states, as well as Washington, hoped that measures to improve background checks would finally pass. The proposals failed in Congress, and some state legislatures strengthened gun protections, instead. 

That resistance led the White House to look at "executive actions" to curb gun violence. After Sandy Hook, Obama took more than twenty executive actions against what he calls an "epidemic" of gun deaths, and he is expected to announce more on Monday. The announcement will be followed by a town hall-style discussion, broadcast on CNN on Thursday, and the upcoming State of the Union address on January 12.

But for many gun-rights advocates, and Republican campaigners, that's an unjustified use of power.

"This is going to be another illegal executive action which I'm sure will be rejected by the courts," New Jersey Gov. and Republican presidential candidate Chris Christie told Fox on Sunday, comparing Obama to a "king" and a "dictator."

Fellow Republican contender Jeb Bush voiced similar concerns to Fox, saying Obama's "first impulse is always to take rights away from law-abiding citizens," and that relying on "executive powers he doesn't have is a pattern that is quite dangerous."

"Executive action" is a broad label for presidential actions that do not require Congressional approval, many of them non-binding. Those that do carry legal weight can be undone by courts, or subsequent legislation.

"Executive orders," one type of executive action, are directives that carry legal weight. 

As NPR noted in 2014, when Obama sought to reform immigration policies with executive actions, "Critics say there's no specific Constitutional authority for [executive orders], but precedent has outweighed the critics" – when it's politically convenient: even George Washington used eight of them. Lincoln's "Emancipation Proclamation" was an executive order as well.

Obama may choose to influence gun policy less forcefully, and more gradually, by asking the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to redefine gun dealers under federal law, and avoid inevitable lawsuits attacking an executive order. Freedom Watch, a conservative advocacy group, has promised to file lawsuits to block any executive orders, and Democrats fear that a Republican president would undo new rules within days of taking office.

Former-Secretary of State Hillary Clinton and Vermont Sen. Bernie Sanders, both candidates for the Democratic presidential nomination, have said they support executive action on gun control.

Current law requires gun sellers whose "principal objective of livelihood and profit" is selling firearms to get a dealer's license through the ATF. Critics say that leaves a number of loopholes: people selling guns, for whom it's not their primary business, can sell to customers without the background checks required of registered dealers.

Other changes could require dealers to report missing guns to the National Crime Information Center, according to Politico, which could help track stolen weapons. 

If Obama does pen an executive order to tighten background checks, it may be hard to undo, legal experts say, despite some gun advocates' claims that an order would be "illegal."

"There are very few things I'd say with 100 percent certainty about what the Supreme Court and other courts would do, but I'm 100 percent certain that no court would say requiring more background checks violates the Second Amendment," Stanford University law professor John Donohue told Reuters.

Criticism of Obama's use of executive actions has been a common theme during his presidency, with opponents claiming he relies on them heavily, while supporters say he's used far fewer than his predecessors. In December 2014, the Washington Post judged both sides wrong: although Obama has issued fewer executive orders than any president since Grover Cleveland, who left the White House in 1897, the paper noted that measuring the impact of executive actions was far more difficult.

In a December poll by Reuters/Ipsos, 65 percent of respondents said it was important to address gun control, versus 29.4 percent who said it was unimportant. 

This report contains material from Reuters and the Associated Press.