Last week, it was just speculation as to what President Obama’s executive action would include. Monday afternoon, Press Secretary Josh Earnest, Senior Adviser Valerie Jarrett, and Attorney General Loretta Lynch held a conference call that gave details on what the action would include.
During the call Earnest, Jarrett and Lynch confirmed that the executive action would “include guidance on how the Bureau of Alcohol, Tobacco, Firearms, and Explosives will now determine who is ‘engaged in the business’ of selling firearms under federal law and, therefore, who is required to obtain a license to sell firearms.”
Expect the NRA to file a lawsuit in federal court the minute after President Obama signs the executive action. Part I of this series laid out the difficulty the Obama administration will have in court with this executive action. Specifically, the Obama administration will have difficulty justifying their executive action defining the term “engaged in business” because the Firearms Owners Protection Act of 1986 specifically defines the term:
The Firearms Owners Protection Act of 1986 clarifies that “engaged in the business” refers to “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”
If the courts don’t strike down the Obama executive action, that will set a precedent that gives the executive branch the authority to bypass the legislative process entirely. That isn’t acceptable because it would give presidents the ability to essentially obliterate the Constitution’s system of checks and balances.
Jarret then said that selling as few as “two firearms” could require somebody to obtain a federal firearms license. However, later in the call, Attorney General Lynch revised that number down further. “It can be as few as one or two depending upon the circumstances under which the person sells the gun,” Lynch said.
The solicitor general will find that position difficult to defend. The Firearms Owners Protection Act of 1986 clarifies that engaged in the business doesn’t refer to “a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”
The indisputable intent of President Obama’s executive action is to rewrite the part of the Firearms Owners Protection Act that defines who isn’t required by federal statute to conduct background checks or to purchase a Federal Firearms License.
Simply put, changing federal statutes requires legislative action because statutes are created through the legislative process. The Constitution says that Legislative Branch that has exclusive authority to rewrite statutes.
In its simplest form, the Obama administration’s executive action is a fight over the Constitution’s system of checks and balances and the Constitution’s Separation of Powers provision.