July 29, 2016


The Separation of Powers Restoration and Second Amendment Protection Act, H.R. 4321, is before the House Subcommittee on the Constitution and Civil Justice.  Congressman Marlin Stutzman (R-IN-3) is the lead sponsor.  The Senate version is S.2434.  Senator Rand Paul (R-KY) is the lead sponsor.[1]

The bill’s core language says, “Any existing or proposed executive action that infringes on the powers and duties of Congress under section 8 of article I of the Constitution of the United States or the Second Amendment to the Constitution of the United States shall have no force or effect.” The bill defines executive action as including “an Executive order, memoranda, proclamation, or signing statement.”

The bill appears to apply to executive branch administrative agency action, though it does not specifically reference such agencies. If so, then the bill perhaps would result in at least some restriction of the very broad statutory interpretive discretion that federal executive branch agencies have enjoyed since Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837(1984).

Ideally, either the Senate or the joint committee adds clear language to the bill that (1) specifically applies to executive branch administrative agencies, (2) specifically applies to independent administrative agencies, and (3) specifically prevents the executive branch and its agencies from simply ignoring statutes as they are written, i.e. failure to enforce via inaction, or what mental health professionals often call passive-aggressive (circuitous) behavior. The language could be as simple as adding “inaction” and “executive branch and/or independent administrative agency action or inaction” to the bill’s definition of “executive action.”

Normally, SOPRASAPA would be a mild, and perhaps unnecessary, statute. Modern-day administrative power, however, is not normal. This administration and its administrative agencies opened themselves to reasonable criticism that they have been unusually aggressive with their Chevron deference, and that they have ignored or defied statutes. Topical examples include health care, immigration, defense, and many others.

Congress does not have the constitutional authority to independently “execute,” or carry out, and/or enforce the statutes that it writes; it depends on the executive branch to do that. If the executive branch or one of its agencies does not like a particular statute as written because of policy or political reasons, the proper recourse is to persuade Congress to amend or rewrite the statute, not just ignore or defy the statute and refuse to execute/enforce it as it was actually written.[2]

Pro-gun control senators will almost certainly oppose SOPRASAPA’s specific 2nd Amendment language.  But the language is necessary because the Obama Administration on several occasions, even as recently as last week, took sharply controversial executive and/or agency action on gun control regardless of existing statutes or clearly-expressed Congressional intent.

Examples include attempting to ban commonly-used ammunition and repeatedly refusingstatutorily-permitted imports of collectible Korean War M1 Garand rifle “curios and relics” which the U.S. produced, and subsequently sold to South Korea in the 1950’s, even after the administration already approved their importation. Even the President’s own party members disagreed with him. For example, Senator Patrick Leahy (D-VT) and Governor Peter Shumlin (D-VT) requested that President Obama allow their importation, especially given that the State Department, the Defense Department, and the Justice Department all approved. They referred to the 60-year old items as “collectibles” and “not the target of law enforcement concern.” President Obama, however, referred to them as “military-grade weapons,” which is technically true, if one is referring to the U.S. Army’s standard-issue rifle from 1936 – 1957,[3] and which no modern military would want to use except for ceremonial, museum, or collectible purposes.

Last Friday the State Department very quietly issued new gun control administrative regulations, via its Directorate of Defense Trade Controls (“DDTC”),[4] which administers the Arms Export Control Act (“AECA”) and its implementing rules, the International Traffic in Arms Regulations (“ITAR”). These new regulations have received barely any media coverage.  Prior to last week’s regulations, only commercial businesses which actually produced firearms from scratch had to register as “manufacturers.” The new regulations go well-beyond this because they arbitrarily redefine “manufacturer” to include individual gunsmiths or firearm repair experts, individuals who do not produce, create, or “manufacture” firearms, but instead customize them or small parts for old firearms long out of production.

Whatever happens with the presidential election, the Separation of Powers Restoration bill is yet another example of why it is crucial to have Senators and Representatives who understand and care about the Constitution and the proper role of each branch of government, and about the dangers of an overbearing administrative state, which did not exist in September of 1787.

[1]           This is not the same bill as The Separation of Powers Restoration Act of 2016, H.R. 4768, where Congressman John Ratcliffe (R-TX-4) was the lead sponsor.  S.2724 is the related Senate bill, for which Senator Orrin Hatch (R-UT) is the lead sponsor.  A future blog post will discuss H.R. 4768 and S.2724.


[2]           Even if Silvio Dante from HBO’s The Sopranos likes to say, “Fuhgeddaboudit.”  The Sopranos, (HBO, Chase Films, and Brad Grey Television 1999 – 2007).


[3]           In popular culture, the M1 Garand is featured in award-winning films such as Saving Private Ryan, in which Matt Damon plays Private James Ryan.  (Saving Private Ryan, Amblin Entertainment, Mutual Film Company, DreamWorks Pictures, Paramount Pictures 1998).


[4]           The DDTC is part of the State Department’s Bureau of Politico-Military Affairs.

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