For at least the last 10 years, the prevailing American theory of federal governance has been this: The government’s lawmaking power rests with Congress—unless the issue is really, really important, and Congress is taking a long, long time to address it, at which point the president is well within his rights to step in and do the lawmaking himself. When President Obama made a pledge to act where Congress wouldn’t on a bevy of issues a centerpiece of his 2011 State of the Union address, Republicans rioted against what they described as an imperial power grab—but they got theirs this year, when President Trump declared a national emergency to build his border wall unilaterally after Congress repeatedly refused to fund it. What was once decried as partisan chicanery has become unremarkable bipartisan strategy. Such happy developments are called “consensus building.”
Which brings us to Senator Kamala Harris’s new plan to crack down on U.S. gun sales if she is elected president in 2020.
Harris’s plan, announced Monday, amounts to a laundry list of progressive priorities on gun control. Some of her proposed changes, like prohibiting people with outstanding arrest warrants and unmarried domestic abusers from purchasing firearms (married ones are already barred), are relatively small tweaks. Others, like requiring anyone who sells more than five guns in a year on the secondary market (currently covered by the so-called “gun show loophole”) to register as an arms dealer, and revoking legal protections for arms manufacturers afforded by the 2005 Protection of Commerce in Arms Act, would be massive, sweeping changes.
What’s most remarkable about Harris’s proposals, however, aren’t their content. It’s their framing: More than a year ahead of the election, Harris is already threatening to implement all of them unilaterally if Congress doesn’t pass them within 100 days of her taking office.
“We’re not waiting for a good idea—we have good ideas,” Harris said in a policy statement on her campaign website. “We’re not waiting for another tragedy—we have seen the worst human tragedies we can imagine. … We’re not waiting any longer.”
Conservative Cassandras have long described the imperial presidency as a slippery slope—each presidential overreach making the next easier, more inevitable. And now Harris is making it part of her central pitch to voters that she will revoke federal laws on her own if Congress won’t do it for her. The 100 days afforded Congress to do so barely qualify as window dressing.
Which makes one wonder: What’s the point of the 100-day window at all? If Harris believes that the president has the power to throw out whole pieces of legislation like the PCCA, what’s the point of trying to get the congressional stamp of approval first? This is the same question that arose in the weeks prior to Trump’s national emergency declaration, when he repeatedly insisted that he had the power to go around Congress—but would of course prefer to get a deal done. He didn’t get the deal done, so he went around Congress.
The answer seems obvious: There remains at least a twinge of unease that ignoring the lawful separation of powers is something that should be done only at last resort. “Of course for most things we’ll keep following the Constitution,” the partisan suggests, “but this thing is important enough to make an exception.” The trouble is that this twinge grows fainter with each subsequent abuse. By now it has nearly faded entirely. How long before candidates stop bothering to offer Congress a window in which to be good and do as they’re told at all?