By Mike Lillis - 01/12/13 04:54 PM EST
The Obama administration's vow to tackle gun violence – with Congress, or without – has sparked an uproar from conservative Republicans and has left Democratic gun reformers eager to learn what the White House has up its sleeve.
Vice President Joe Biden is expected to propose legislative solutions to what President Obama has called the nation's gun-violence "epidemic" as early as Tuesday, but he says he's also eying executive orders empowering the administration to take action without congressional approval.
“There are executive orders, executive action, that can be taken," Biden said Wednesday. "We haven't decided what that is yet, but we're compiling it all.”
A roadblock in Congress would shine a brighter spotlight on Obama's unilateral response – both as a fulfillment of his promise to address gun violence head-on in the wake of last month's Sandy Hook Elementary School massacre, and as a magnet of criticism from conservatives who've accused him for years of ruling by decree.
Legal experts say the most significant changes being considered by Biden's task force – including an assault weapons ban, a prohibition on high-capacity ammunition magazines and universal background checks for gun sales – would all require congressional action.
"His options are limited," Adam Winkler, constitutional scholar at the UCLA School of Law, said by phone Friday. "He can seek to better enforce existing federal law, but he can't act contrary to existing federal law."
Winkler and others say Obama can install changes like new importation limits on weapons, tougher law-enforcement policies and greater cooperation between federal agencies sharing criminal and mental-health records – all without Congress's blessing.
Biden and other administration officials are holding their cards very close to the vest, but past actions from the White House – combined with some of the vice president's brief public comments from this week – lend some clues about what type of executive actions might be under consideration.
Much of the focus seems to be on efforts to strengthen the National Instant Criminal Background Check System (NICS), an FBI database through which licensed gun dealers are required to screen potential buyers before selling weapons. Under federal law, felons, illegal immigrants, drug abusers, spousal abusers and the severely mentally ill may not buy or own firearms. But the system is riddled with holes, as many states – and even federal agencies – have declined to share records with NICS.
Indeed, an examination of 60 federal agencies in October 2011 revealed that only eight had shared mental-health records with NICS, while only three had submitted drug-abuse records, according to FBI data provided to Mayors Against Illegal Guns, an advocacy group. Among the agencies that had not shared any records on substance abusers was the Drug Enforcement Administration.
Winkler said it's well within Obama's power to require federal agencies to share records with NICS, though it would take an act of Congress to require states to do the same.
"It's widely regarded that there's insufficient sharing of information between federal agencies," said Winkler, the author of "Gunfight: The Battle over the Right to Bear Arms in America."
Biden is also considering executive action to limit the importation of certain weapons and ammunition, according to sources familiar with the talks. Legal experts note, however, that such a move would do nothing to limit the availability of the same weapons made domestically, and some gun reformers suggested that loophole would make new importation rules largely ineffective in preventing gun violence.
As another unilateral option for Obama, some gun reformers are urging the administration to implement mental-healthcare reforms already passed by Congress but not yet in effect. Although the Mental Health Parity and Addiction Equity Act was enacted in 2008, the White House has yet to finalize all the rules surrounding it – a mistake, according to some Democrats.
In a Friday letter to Biden, Democratic Sens. Tom Harkin (Iowa) and Al Franken (Minn.) said "millions of Americans … entitled to access to a full range of mental health and substance use disorder services" are missing those treatments because the law has not been fully implemented. They've asked the vice president to finalize the law as part of his violence-prevention strategy.
Additionally, gun reformers want Obama to place a permanent director of the Bureau of Alcohol, Tobacco, Firearms and Explosives – a position that hasn't been filled for roughly six years due to opposition from gun-control opponents in Congress.
Some, including New York City Mayor Michael Bloomberg, are also pressing the Justice Department (DOJ) to get more aggressive in going after those convicted of trying to buy firearms by filing fraudulent background information. Citing 2009 figures, Bloomberg hammered the DOJ recently for prosecuting only 77 of 71,000 cases where people were found to have lied on their background checks.
"These are gun criminals trying to buy guns illegally – and the federal government is just letting them walk," Bloomberg said during a speech in December.
The Obama administration has already taken some unilateral steps to combat illegal gun activity.
In the summer of 2011, for instance, the DOJ installed a new policy requiring licensed gun dealers in the states bordering Mexico to report sales of two or more assault weapons to the same buyer within five business days. The move came in response to a spike in border gun violence and evidence that thousands of firearms used by Mexico's drug cartels were purchased in the United States.
A DOJ spokesperson declined this week to say whether the agency is eying an expansion of the policy as an effort to prevent mass shootings.
Still, foreshadowing the possible fights to come, even the limited reporting requirement provoked a backlash from conservatives on Capitol Hill, and the policy is now a subject of a legal challenge.
Laurence Henry Tribe, a constitutional scholar at Harvard University and former DOJ official under Obama, said the White House is being exceedingly careful not to overstep its legal bounds as it considers executive actions on gun violence.
"I can assure you that the President and Vice President are both highly respectful of the separation of powers and don’t intend to propose any unilateral executive action that would 'sidestep' Congress in any constitutionally problematic way," Tribe, who remains in contact with the White House, said Friday in an email.
Conservative Republicans are not convinced, and a growing number of them warned this week that they're ready to fight tooth-and-nail against any executive orders that limit access to firearms.
Rep. Gregg Harper (R-Miss.) said any such changes are "a step towards an out-right ban on firearms;" Rep. Jeff Duncan (R-S.C.) said he'll "use every means at my disposal to combat the agenda of the executive branch to undermine our Second Amendment rights;" and Rep. Steve Scalise (R-La.), who heads the Republican Study Committee, challenged Biden "to read the Second Amendment and revisit the meaning of the phrase 'shall not be infringed.'"
Even those conservatives open to some gun reforms are treading into the debate with extreme caution.
For instance, Sen. Ted Cruz (R-Texas), a strong NRA backer, said last weekend that he wants to enlarge the NICS database.
"The federal database is not nearly as good as it should be," Cruz said on the "Fox News Sunday" program. "That would be a common-sense improvement."
Asked this week if Congress should make those improvements, however, Cruz's office suggested the changes should be left to states.
Cruz also "strongly opposes" the notion that background checks should be required for all gun sales, not just those conducted through licensed dealers, said spokesman Sean Rushton.
That opposition highlights the difficulty Obama and other Democratic gun reformers will have passing legislation to close the so-called "gun-show loophole" – the top policy recommendation from the Brady Campaign to Prevent Gun Violence, a gun-control group.
"If you don't see any movement from Republicans, nothing's going to get done [in Congress]," Winkler said.
"We've seen a significant change in the political climate since the Newtown shooting," Winkler added. "But whether it leads to significant reform is still up in the air."