How To REALLY Read an Executive Order
Although I’ve previously commented on presidents ruling by executive fiat, it just recently occurred to me that many readers may not read the executive orders themselves and instead rely on secondhand coverage from the likes of the SDCGO blog and Gun Owners Radio to keep them informed. You certainly won’t hear me knocking those secondary sources (especially considering I contribute to both), as they can offer valuable analysis from angles you may not have considered, but it always helps to read the original document before debating its merits and flaws. I don’t claim to be anything resembling an expert in constitutional law, but the coursework for my degree in international affairs gave me considerable practice analyzing various types of government policy statements with a critical eye. As such, this blog post is intended as a beginner’s guide to critical analysis of any executive order so you can develop your own informed opinion instead of having talking points downloaded into your brain by television anchors.
Where to Begin
Whenever the president issues an executive order (EO), it is usually accompanied by a press release on whitehouse.gov and sometimes a public presentation by the president and other stakeholders. Unless you’re trying to study the relevant policy area in depth, you can safely ignore the press release and speeches, as they only exist to drum up popular support for the executive order. They’re basically the administration advertising itself. You want to head over to the Federal Register, where each new EO is officially published, usually within a few hours.
Reading Like a Political Scientist
To do a proper critical reading of an executive order, you need to think beyond the words on the page. Try to pick apart the document like you’re a lawyer trying to challenge it in court, especially if it’s an EO you support. At every stage, ask yourself a series of questions: What is this being billed as? What will it really do? What won’t it to? What unstated reasons might the administration have for issuing this? What will this do for their public image among various groups of constituents? What existing laws, regulations, and executive orders does this one affect?
Parts of an Executive Order
Every modern executive order follows the same basic format. Though the actual number of sections varies, an executive order can generally be divided into three or four main components.
Purpose
An executive order’s first section consists of a statement of policy by the administration. This can be as short as a few sentences or as long as several paragraphs (sometimes making up the majority of the EO), depending on how much the administration wants to grandstand. A purpose section isn’t always present, particularly if the EO only serves to revoke previous ones, but it’s usually there even if it’s short.
One thing to note is that the reason the purpose section exists is to justify the body of the executive order. It might be a reasonable, concise, well-thought-out statement, or it may very well be a bitter polemic filled with ludicrous claims and tacit accusations at the opposing political party. Its true value to the analyst (that’s you in this case) is that it offers a glimpse into the administration’s thought processes and view of itself in the political landscape.
Definitions
This section isn’t always present either, but like many laws and regulations, executive orders must sometimes define whatever it is they’re regulating. Executive orders that affect the Second Amendment generally rely on the definitions set out by the NFA in 18 U.S.C. § 921 and 922 and 26 U.S.C. § 5845, but last year’s “ghost gun” EO, for example, introduces legal definitions for the terms “machinegun conversion device” and “3D printing.”
The definitions section of a law, regulation, or executive order may at first glance seem like boilerplate, but its exact wording is often the target of legal challenge. When an EO includes definitions, try to pick them apart to figure out exactly what they do and do not cover, and how they might be open to creative circumvention.
Implementation/Plan of Action
This section usually makes up the bulk of the EO and is usually fairly straightforward and easy to understand. There are, however, a few things to watch out for.
One is incongruity between the plan of action and the statement of purpose; in other words, the administration saying one thing and doing another. This usually manifests as follows: the purpose section spends a few paragraphs using strong language to trumpet about how the president is taking a stand against [whatever hot-button issue gets people to the voting booths], then the plan of action is a mealymouthed instruction for agency heads to compile a report on [that hot-button issue] for the relevant secretary, or at most, an order to stand up the White House Office of [hot-button issue] Policy.
Another thing to watch out for is when a president knowingly issues a blatantly illegal or even unconstitutional executive order, counting on the strong possibility that a court will not enjoin it soon enough or fully enough to prevent its implementation. Even if the administration knows the order will be stricken down eventually, it will take several years and vast sums of money for private citizens to make that happen, as we’ve seen in the past. The government’s resources, on the other hand, are practically infinite, as they have an army of lawyers who use your own money (extracted through taxation and inflation) to fight you in court.
General Provisions
Every executive order ends with a brief section disclaiming that nothing the order does should interfere with executive departments and agencies or existing law. This section is basically the same in every EO and can be ignored.
Conclusion
Given that every president in recent history has issued hundreds of executive orders, it’s easy to forget that they aren’t explicitly provided for in the Constitution. Article II, Section 1 states that “the executive Power shall be vested in a President of the United States of America,” which the Supreme Court has interpreted as approval for the president to issue EOs as long as they don’t conflict with the government’s formal separation of powers.
Despite the somewhat informal nature of executive orders as a part of government procedure, they effectively carry the force of law, and have been used repeatedly in ways that dramatically affect the Second Amendment. With this blog post as a guide, you’ll be better equipped to read executive orders with a critical eye, so that the next time one comes down that involves gun control or gun rights, you’ll be able to read between the lines and develop an informed opinion on it.