When Hillary Clinton rolled out a series of new gun control proposals this week, one of the most newsworthy and controversial ideas she put forth was a vow to use executive action as president to fix the background check system if Congress refused to act.
But the Obama administration has already taken a long, internal look at the same executive-action proposal Clinton has promised to undertake, and has doubts over whether it can be made to work in practical terms, according to current and former senior administration officials.
The administration is still looking at this idea, in the wake of Obama’s announcement after the Oregon shooting that he has directed officials to “scrub” current laws for further actions the executive branch can take against gun violence, those officials say.
But the administration studied the same proposal in 2013 after the Newtown shooting, in the run-up to its release of a number of other executive actions on guns, and decided against including this particular idea out of concerns about its workability, the officials confirm.
The Clinton campaign has pointed to her vow to use executive action to begin closing the long-discussed private seller loophole — which allows for sales conducted by private sellers to proceed without a background check — as proof of her commitment to acting on gun violence. As a Clinton spokesperson put it: “Her willingness to pursue reforms by executive action if necessary is proof of how urgent a priority this is to her.”
But it turns out that this proposal may be harder to actually implement than it might seem.
The Obama administration has long been in discussions with gun control groups about this idea, according to sources familiar with these talks. The basic idea has long been that a simple rules change — through administrative action — can help close a loophole that is making it easier for guns to end up on the black market or in the hands of criminals.
Current law requires those who are “engaged in the business” of selling firearms to get a federal firearms license — and to conduct background checks on buyers. Private sellers don’t need to conduct such checks. Gun control advocates have argued that administrative rules defining what that phrase means are too vague, allowing many private sellers who are actually selling guns as a quasi-business to do so without running checks on buyers. They argue that the Bureau of Alcohol, Tobacco and Firearms could tighten this up with a rule that narrows the definition of who is “engaged in the business.”
The Obama administration looked at this idea, officials tell me, studying whether “engaged in the business” could be defined with, say, a threshold number of guns sold — say, 50 or 100 per year. If this were done, those who identify as private sellers (and sell without background checks) but sell that many guns could no longer do so without getting a license and performing background checks.
But the idea quickly presented complications. One former administration official involved in these discussions tells me that some officials worried it would present new and unforeseen enforcement problems. One senior administration official says some worried internally that defining a commercial seller through a hard sales threshold — as opposed to, say, leaving it to the discretion of law enforcement to determine who is a commercial seller — could be subject to legal challenge and could end up sweeping in people selling guns who clearly were not engaged in it as a long term business. This could create untold logistical — not to say political — difficulties.
“It was very clear that it was way more complicated than the other stuff being looked at,” the senior administration official tells me.
The idea is not dead. After Obama called for a renewed look at what the executive branch might do, the administration has resumed looking at it, officials say, but it still appears challenging. “We have been looking at this and continue to look at this,” the senior official says. But the administration still has not found a way to make it work, sources say.
None of this necessarily means that Hillary Clinton should not have proposed this idea. Indeed, Obama administration officials did not express frustration over the Clinton camp’s proposal.
But it’s noteworthy that Clinton is pledging to go farther in using executive action in this area than the Obama administration, based on practical constraints, has determined is advisable or feasible, at least thus far. It turns out that the idea may be significantly more complicated to put into effect than it may appear from the campaign trail.