Executive Orders

[Come and take it.]

To break this down further.

What about semi-automatics that still get imported such as the springfield xd series of pistols, the gsg .22 semi-auto rifles, saiga rifles and shotguns etc.?

Also would non-gun material be subject to tightening of the importation ban through executive order?

such as parts kits that are utilized and placed onto american made recievers.

----------------------------

Also Russian, Ukranian and various Balkans manufacturers of ammunition. Could these under existing law be banned from import?

 

[mayosligo]

So what is the point then of Vice President Biden suggesting today that the White House could take unilateral action on gun control, as he kicked off a round of meetings aimed at finding ways to curb gun violence.

Read more: http://www.foxnews.com/politics/201...to-meet-with-gun-safety-groups/#ixzz2HVXXFzZ6

 

[Strafer Gott]

Impure thoughts

Not to interject a fly in the ointment, but isn't the Patriot act still law of the land, and doesn't it suspend much of the "Bill of Rights", and other little fine points such as "habeas corpus". Doesn't this enable such actions as rule by decree, other wise known as executive order. I hope the Patriot Act doesn't become the great irony of our time. I hope they will back away from this line of thought, and appreciate the damage it could cause. I love my country, and I want her back!

 

[rajbcpa]

Sorry Servo; you are wrong!

Obama's executive order creating a path to citizenship for illegal aliens age 30 and under is an example of creating an order that has the force of law. In effect, it is a defacto-law which has not, and likely will not, be challenged by the courts or rejected by Congress via a 2/3rds vote.

In addition, gun-grabber Joe Biden publically announced On Wednesday that Obama intends to issue an executive order on gun control.

 

[Battler]

Obama's executive order creating a path to citizenship for illegal aliens age 30 and under is an example of creating an order that has the force of law.

Technically, the order was to suspend enforcement (immigration law is already highly unenforced through a combination of selective enforcement, logistical realities and prevention of enforcement (US vs AZ)). Any "path" would only be from preventing deportation of people who may be around for a future amnesty. There is probably considerably more leeway in the way the immigration departments do their thing than in other areas of law.

An executive order may be able to direct the ATF to expand some NFA category - they have arbitrary power to expand the categories already available to them. I'm not saying though that this would be an easy or quick path to more gun control.

An executive order would be more useful for removing enforcement of an existing gun control law than it would for making new laws.

 

[BGutzman]

Without getting political.. here's my consideration... Ok lets say tin hat EO is given.... There is no way the SAF nor NRA is going to sit and allow the imposition of a decree that is enacted with the force of a new law... It just isn't going to happen. The fallout would be very bad come re-election and might even lead to the neutering of future EO's in the courts.

 

[BarryLee]

So, hypothetically let’s say an EO is issued what happens?

It can be challenged by the Congress and/or in the courts. Right?

Obviously based on the current climate in Washington it is difficult to speculate on what Congress might do.

So, regardless of how many Legal Scholars and previous precedents say it is un-Constitutional if the current Court says it is acceptable it then becomes Constitutional. Am I correct?

 

[JN01]

"There are executives orders, there's executive action that can be taken. We haven't decided what that is yet. But we're compiling it all with the help of the attorney general and the rest of the cabinet members as well as legislative action that we believe is required." -Joe Biden

The same guy that is running interference for the sell guns to Mexican drug lord scheme? No worries then, it will all be legit.

 

[breakingcontact]

As much as I don't like the speculation...I don't need the anxiety...there is what officials are legally allowed to do and there is what they can get away with doing.

Not good to jump everytime a gun grabber speaks but equally not good to think they won't trample all over our rights if they can.

With such a willingly ignorant electorate and if the courts can be stacked in favor of those who don't respect life and liberty, anything is possible.

 

[ROCK6]

Knowing the how factual our media can be, it was just put out that the POTUS could use an Executive Order to establish national database/registry and improve background checks...we'll see to what extent that really means.

ROCK6

 

[Tom Servo]

it was just put out that the POTUS could use an Executive Order to establish national database/registry and improve background checks

Without getting too political here, it's Joe Biden. He's been known for letting his mouth outrun his brain a few times, and this is one of them.

A national registry would have to go through Congress. So would any significant change to the background check system.

What could be done via EO? Maybe tightening states' reporting requirements to NICS, or (one I could get behind) encouraging more aggressive prosecution of straw purchases and other trafficking crimes.

Long story short, take what Biden says with a grain of salt.

 

[Frank Ettin]

Sorry Servo; you are wrong!...

Sorry, but you apparently don't understand the law, how our government works or what an executive order is. Tom Servo is, in fact, correct.

An executive order is instruction from the president, as manager of the executive branch, to the administrative units reporting to him regarding the implementation and enforcement of statutes and regulations. As such, it must be consistent with statute or regulation to which it relates. A executive order can not make new law or regulation.

Executive orders may be challenged in court for going outside the scope of statute or regulation, or on a question of constitutionality. And there's our "checks and balances."

 

[Daugherty16]

I am not a lawyer or an expert on anything, but do have some experience in the Govt and am writing based on that experience. On that basis:

Seems to me that Executive Orders have a force and effect similar to regulations. As in CFR (Code of Federal Regulations). The simple view is this: most laws are conspicuously vague in the details. The law simply creates an imperative, or defines lawful/unlawful acts, or orders creation of a new program, say. Then the real work starts.

The staff of an agency designated to carry out implementation of the law then sits down to interpret and implement said law, and they write the regulations. The regulations regularly exceed the volume of the enacting law by orders of magnitude, so Obamacare, a 2500 page law, should be expected to generate more than 50,000 pages of regulations. The regulations are then published in the Federal Register for public comment for a prescribed period, then the final regulations are issued. In essence, the Regs define the parameters and rules for implementation of the law and unless challenged, they effectively become the law as most people would interpret it.

Then from the Regs, an agency creates its policy. In Govt, the doctrine is: policy can be amended or suspended usually at fairly low levels, regs can be waived for good cause but usually only by Director/Secretary/undersecretary level staff, but statutory mandates require an act of congress to set aside.

It seems an EO would bypass the whole process of public comment and have the effect of new Regulations. It could alter the implementation of the underlying law, alter the process or procedures used by the agency enforcing the law, but would not itself be a law. It could easily change the list of banned imports, or records retention from NICS checks, create a national registration program, magazine limits, etc. If the EO violates existing statutes it could be set aside if challenged, but... as with the immigration EO directing ICE to stop enforcing sections of putative valid statutory provisions, the limitations in scope of an EO is not well known. And if it goes unchallenged, it basically might as well be the law.

 

[Frank Ettin]

I am not a lawyer...

I am a lawyer.

...It could easily change the list of banned imports, or records retention from NICS checks, create a national registration program, magazine limits, etc...

Nope, not if such matters aren't within the existing scope of the statutes or regulations. A President can not by executive order impose new limitations or restrictions or burdens outside or beyond those already imposed by statute.

... as with the immigration EO directing ICE to stop enforcing sections of putative valid statutory provisions,...

The doctrine of prosecutorial discretion is well entrenched in the law. It is a matter of allocating available law enforcement or prosecutorial resources.

 

[USAFNoDak]

A national registry would have to go through Congress. So would any significant change to the background check system.

Wouldn't Congress also have to first repeal the FOPA86, which specifically prohibits a national firearm registry? Obama can't just nullify that via EO.

 

[Daugherty16]

Frank, i sort of thought you were from some of your posts. Appreciate the clarifications. But let me ask - what is to actually prevent an EO from being issued that contravenes an existing statute? And what would be the process for challenging it in court, or is there an administrative review of some sort by the judiciary that would stop it before it was issued?

And you said that an EO can't impose requirements outside the scope of existing statutory or regulatory authority. Agree on the statutory limitation. Are you sure about the regulatory limits? Many regulations take broad license where the statute is silent, in fact by necessity.

 

[Kryptic]

So, hypothetically let’s say an EO is issued what happens?

It can be challenged by the Congress and/or in the courts. Right?

Obviously based on the current climate in Washington it is difficult to speculate on what Congress might do.

So, regardless of how many Legal Scholars and previous precedents say it is un-Constitutional if the current Court says it is acceptable it then becomes Constitutional. Am I correct?

That's exactly what I'm worried about. The SCOTUS is only one Justice away from tipping it to an activist (liberal, anti 2A) Court and Congress is acting very oddly on Capital Hill right now.

 

[Frank Ettin]

...what is to actually prevent an EO from being issued that contravenes an existing statute?...

Contrary to popular belief, a President is going to go to some pains to be sure any executive order he issues is lawful and would be unlikely to be overturned by a court. It doesn't do his prestige or credibility any good to issue orders that keep getting tossed by the courts.

Any executive order is going to be reviewed by legal counsel and will most likely go through an exhaustive vetting and revision process. Even at that, an executive order may sometimes get bounced by a court, but that's a fairly rare event -- primarily because Presidents try not to issue illegal executive orders.

Note of course that an executive order (like a regulation or a statute) can be legal and constitutional and still be a bad idea. Then again, you or I might think it's a bad idea, but someone else might thinks it's peachy. Being legal and constitutional is not the same thing as being a good idea.

...And what would be the process for challenging it in court...

It will depend on the exact situation.

...is there an administrative review of some sort by the judiciary that would stop it before it was issued?...

Not by the judiciary. The federal courts do not issue advisory opinions. But as discussed above, any executive order will certainly be thoroughly reviewed by legal counsel before it is issued.

...Many regulations take broad license where the statute is silent...

Not really. The authority to issue regulations on a matter must be conferred in some way by a statute to which a regulation pertains. Issuance of regulations is in effect a delegation of legislative authority, and there is a large body of decisional law circumscribing that regulatory authority.

 

[jmortimer]

What we know is that we have been told here not to worry, that there is nothing significant that can be accomplished by virtue of executive order. Now we can see what is what. I'm predicting that much more that nothing will be instituted by virtue of executive order and that all the nay-saying will be proved wrong, way wrong.

 

[pnac]

Legal Scholars:
What about a "Presidential Proclamation", does it carry any legal weight that should concern us?
From wiki:https://en.wikipedia.org/wiki/Executive_order

Presidential proclamation

A presidential proclamation "states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)".[11] Presidents “define” situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders—the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government. The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers”. Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.[12]