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Old November 20, 2008, 11:00 AM   #1
pax
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Executive Orders

How do Executive Orders work?

Where does their legal authority come from?

What are their functional limits?

Who was the first President to use them?

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Old November 20, 2008, 11:10 AM   #2
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Kathy,

This sounds like a history test I bet you would make a tough test maker!
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Old November 20, 2008, 11:12 AM   #3
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Can I do extra credit? I have a low GPA so far!
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Old November 20, 2008, 11:30 AM   #4
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I just wanted someone else to do my homework for me ...



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Old November 20, 2008, 12:05 PM   #5
Ricky B
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The authority comes either expressly from legislation or impliedly from the powers inherent in the presidency. Obviously, if congress gives the president authority to make orders, that's where the particular authority comes from. As for implied powers, let's take an easy example, the president as commander-in-chief. Is there any question that a commander-in-chief inherently has authority to issue orders to those he commands?

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Old November 20, 2008, 12:24 PM   #6
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What I've found:

Quote:
There is no Constitutional provision or statute that explicitly permits executive orders, there is a vague grant of "executive power" given in Article II, Section 1 of the Constitution and the statement "take Care that the Laws be faithfully executed" in Article II, Section 3.

Until the 1950s, there were no rules or guidelines outlining what the president could or could not do through an executive order. However, the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) that Executive Order 10340 from President Harry S. Truman placing all steel mills in the country under federal control was invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution. Presidents since this decision have generally been careful to cite which specific laws they are acting under when issuing new executive orders.

To date, U.S. courts have overturned only two executive orders: the aforementioned Truman order, and a 1996 order issued by President Clinton that attempted to prevent the US government from contracting with organizations that had strike-breakers on the payroll. Congress may overturn an executive order by passing legislation in conflict with it or by refusing to approve funding to enforce it. In the former, the president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order.

Executive orders as issued by state governors are not laws, but do have the same binding nature.
Pulled from Wikpedia
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Old November 20, 2008, 05:22 PM   #7
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U.S. Presidents have issued executive orders since 1789 (George Washington). The earliest one I could find specifically was the Louisiana purchase. The numbering system of Executive orders begins with EO 1, an order issued by Lincoln.

EO 1 was an official order made by US president Abraham Lincoln on 22 September 1862, during the American Civil War, that freed slaves in Confederate (southern) states. The order stated that from 1 January 1863 all slaves in states that were still rebelling against the Union would be forever free. Border states that remained loyal to the Union were excluded. Parts of the South that were then under Union control were also exempt. Thus, Lincoln went down in history as the man who freed the slaves, even though they were not freed in the Union until the passage of the Thirteenth Amendment, passed months after his death.
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Old November 20, 2008, 05:57 PM   #8
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Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent.

Not all EOs are created equal. Proclamations, for example, are a special type of Executive Order that are generally ceremonial or symbolic, such as when the President declares National Take Your Child To Work Day. Another subset of Executive Orders are those concerned with national security or defense issues. These have generally been known as National Security Directives. Under the Clinton Administration, they have been termed "Presidential Decision Directives."

Executive Orders do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II further directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.
http://www.thisnation.com/question/040.html



And of interest......

Executive Orders Disposition Tables Index
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Old January 6, 2009, 12:49 PM   #9
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On the subject of Executive Orders and their use, President-elect Obama has picked Rahm Emmanuel as his chief of staff. The latest issue of ShotgunNews includes an interesting piece by Clayton Kramer dealing with Obama and possible actions he might take re firearms and gun control. Re this, and a reference to possible congressional objections to some possible actions/proposals, there was mention of the use of Executive Orders, as a method of getting round possible congressional objections.

Re this, we come to Mr. Emmanuel and his new position, his anti gun presence being removed from the House of Representatives. He occupied, in the Clinton administration, an important policy position, as memory serves, and re Clinton's anti gun actions, including his use of executive orders, Emmanuel once offered the following. "Stroke of the pen, law of the land", this re Clinton's Executive Orders. Emmanuel is now Obama's Chief of Staff. Does anyone think that his tune has changed?
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Old January 6, 2009, 01:32 PM   #10
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Does anyone think that his tune has changed?

Yep, I do. I haven't read the SGN article so can't comment. But Rahm Emmanuel has said that the Clinton administration got sidetracked with issues that were dear to their (Billary's) heart but for which they were not elected, like gays in the military. He also said that the Obama should, and will, focus on what he got elected to do.

The chief of staff works for the president, and Obama did not run on an anti-gun agenda. The president has much bigger issues on his plate. Reviving the economy, health care, tax policy and balancing the budget, Iran and the Israel/Palestine question, reducing dependence on foreign oil, global warming, and a few other matters are undoubtedly higher on his, and the national, agenda than nibbling away at gun ownership, which would infuriate gun owners but not get as much credit from the public at large.

Notice that ever since Obama won the Democratic nomination, he has been repudiating the left wing positions he took to get the nomination and veering to the center. He said he would take public financing for his campaign. And then he didn't. He said he would vote against the wiretapping immunity bill for telephone companies. And then he didn't. He said he would raise taxes (but only on 5% of us). And now he has proposed wide ranging tax cuts.

More important at this point is which congressmen are elected in two years.
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Old January 6, 2009, 01:45 PM   #11
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Old January 6, 2009, 02:41 PM   #12
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Ricky,
I like your analysis. Gun Control legislation seems to offer a lot more negative to elected officials than it does positives. If Obama overplays his hand then he too will soon have a Republican Congress to deal with. I think he is smarter than that. BUT, that doesn't mean if he gets the chance to do something he won't try.
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Old January 6, 2009, 02:51 PM   #13
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Bush would spout off about abortion, gay marriage and flag burning amendments near election times or when he was down in the polls. Then he did next to nothing for this issues.

Obama might used a similar strategy but multiplying the Bush positions by -1.
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Old January 6, 2009, 09:40 PM   #14
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You guys are not understanding Executive Orders. They apply to the Executive Branch, not to the population in its entirety. Now, they can have an impact on the general population, but only in an indirect sense.

An example would be an order to enforce a treaty provision that prohibited the importation of barrels from military small arms. The EO would be issued and applied to various departments within the executive branch such importations would not be allowed by the agencies charged with oversight of international trade. However, it does not prohibit ownership and possession by individuals, nor does it prohibit the manufacture or sale of duplicates.

EOs, if they reach too far, say to one of the other branches or to citizens, may be ignored (Marbury vs Madison) or challenged in court (will probably keep the JBTs away from the front door of your domicile).
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Old January 6, 2009, 11:09 PM   #15
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FALPhil:

History seems to contradict what you said.

Ricky B:

If you are saying that people like Emmanuel change, I do not agree.
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Old January 6, 2009, 11:50 PM   #16
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I don't think anyone really thinks that Emmanuel has changed his position on gun control. I do think that perhaps the Democrats have learned from their past mistakes and that most of them including Obama and Emmanuel know that gun control is a losing issue right now. It didn't work out well for Clinton (he had to deal with a Republican congress after '94), Al Gore's gun-control policies were one of the factors in his defeat, and gun control certainly didn't help John Kerry too much. Given an opportunity such as some sort of horrific mass murder I think the Dems might try something but I don't think they're stupid enough to try and shove it down our throats out of nowhere.
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Old January 7, 2009, 11:17 AM   #17
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Whether personality and beliefs characteristics can change is quite the debate. Fair evidence says they can.

I know folks who were antigun and have come around. Folks who were discriminatory on race or gender and changed their views.

One thing though, the typical insulting rants and hate from a subset of the RKBA are the worst possible strategy. It make rile up the base to make more contributions but it won't budge folks whose ideas you want to change.
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Old January 7, 2009, 03:44 PM   #18
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The head of the executive agency is bound by law to follow an executive order. However, the funds to do so must come out of the agencies existing budget. The executive agencies must still follow budget rules and policies for expending funds. So Congress can effectively squash an executive order by not funding it. They can also pass legislation which conflicts with the executive order. To keep the executive order in effect the President would have to veto the legislation and hope that Congress doesn't have enough votes to override the veto.
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Old January 7, 2009, 10:48 PM   #19
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alan:

Examples?
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Old January 8, 2009, 03:15 PM   #20
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FALPhil alan:

Examples?

Phil:

Please see and consider the following.
As memory serves, if I'm wrong, give me a shout The Clinton Assault Weapons Ban, as it was described/called blocked the import of a number of semi-automatic rifles, it was close to 200, despite propaganda claiming otherwise.

Fair enough, manufacturers removed some of the offending features, NONE of which created that "selective fire weapon, usually of rifle configuration, chambered for an intermediate power cartridge, the definition of "assault rifle". Slick Willie, in response issued an Executive Order, I do not recall it's number, that tried to block the importation of the above referenced "semi-automatic rifles", rifles that met the requirements, "cosmetic requirements" of the Assault Weapons Ban. I assume that people remember that, though perhaps they don't.

As I understand things, this constitutes a grievous misuse of the Executive Order, that is supposed to FACILITATE the enforcement/operation of enacted legislation, not to go BEYOND the enactments. As I recall, The Congress did nothing to "defund" the So-called Assault Weapons Ban, or the very questionable use of that Executive Order.
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Old January 8, 2009, 05:16 PM   #21
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Actually it was Bush(41) in 1989 that banned the importation. What he essentially did was to order ATF to re-examine the definition of "sporting firearms." As a result, a whole list of firearms were banned from importation because they had too many "military style" features. Any rifle with a pistol grip and detachable magazine suddenly became "not suitable for sporting purposes."

What Clinton did was make a deal with China. If they would quit importing Norinco AKs, SKSs and ammunition, he would grant them "Most Favored Nation" status.

Unfortunately for him, as a result of the breakup of the USSR, a host of countries were standing by to replace Chicom AKs and the SKS made the C&R list.
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Old January 8, 2009, 11:34 PM   #22
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Hkmp5sd wrote:

Actually it was Bush(41) in 1989 that banned the importation. What he essentially did was to order ATF to re-examine the definition of "sporting firearms." As a result, a whole list of firearms were banned from importation because they had too many "military style" features. Any rifle with a pistol grip and detachable magazine suddenly became "not suitable for sporting purposes."

What Clinton did was make a deal with China. If they would quit importing Norinco AKs, SKSs and ammunition, he would grant them "Most Favored Nation" status.

Unfortunately for him, as a result of the breakup of the USSR, a host of countries were standing by to replace Chicom AKs and the SKS made the C&R list.

Hkmp5sd:

Looks as if you caught me in an error. Reading your post, which sort of shook my memory, correctly re it's direction I hope, you are correct.

Those vaunted heroes of "F Troop" as they are sometimes known, also those JBT's, among other sobriquets, prostituted themselves to the antics of Bush 41, in "re-examining" or "reviewing" their classification 0f imported semi-automatic rifles. Of course, this has nothing to do with Clinton's anti gun antics and activities, which as my memory, possibly inadequately describes, Clinton having exceeded the boundaries of Executive Orders.

By the way, what has been described as the Clinton Assault Weapons Ban, even if it were still inforce, would not have "banned" or otherwise effected it's first "Assault Weapon" or "Assault Rifle", as such were PREVIOUSLY addressed in the National Firearms Act of 1934. NONE of the firearms effected by The Clinton Ban, in the configurations that were comercially imported into this country were SELECTIVE FIRE CAPABLE, as imported. This might be a minor detail but then The Devil Is In The Details, and Executive Orders are a device to easily subject to abuse, as is the case with Civil Asset Forfeiture, as it is practiced.
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Old January 10, 2009, 03:01 AM   #23
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The Devil is truly in the details

and, to our detriment. What happened during the Clinton Administration was the legal creation of a new class of firearms. They called them Assault Weapons. Unlike the class of firearms known as Assault Rifles, the new catgegory included only certain semi auto firearms, both rifle and pistol that had certain cosmetic features that made them resemble assault rifles (or other military firearms) externally.

Assault rifle is a term that has been in use in the firearms community since the end of WWII. It is a translation of the German term Sturmgewehr, the name Hitler gave to the first firearm of the type deployed in field use in any significant quantity. The primary features of the rifle became the general description for the class. Selective fire, using an intermediate power cartridge. The rifle configuration usually included a prominent pistol grip, detatchable magazine of 20/30 rnds (since called a "high capacity" magazine), and often a stratght line (or nearly so) stock. The AK 47 is the most produced example of this class.

Assault Weapon is a term that was coined by the anti gunners, to describe military looking semi auto firearms. Originally the quasi accurate term "semiautomatic assault weapon" was used, but both the antis and the press quickly shortened it to assault weapon, for the convienience of the sound byte. This was (and is) a highly misleading term, and was open for debate as to its validity, until certain laws were passed in 1994, both at the state and Federal level. These laws, known as "Assault Weapons Bans" codified in law a legal definition of what an "assault weapon" was. The definition was taken straight from the anti-gun literature, and had nothing to do with actual assault rifles (which are legally machine guns) or reality in general. They defined assault weapons as semi-auto guns having a combination of certain features, which included prominent pistol grip, bayonet lug, flash hider/suppressor/grenade launcher, ability to accept detatchable magazines, folding stocks, heat shields or barrel shrouds among other things. Semi auto handguns which did not take the magazine in the grip were also included.

Different laws varied in detail over how many of the features a firearm could have and not be included on the list of banned/controlled guns. In extreme cases (like New York's state law) even a single feature (such as a bayonet lug) places the gun in the assault weapon category, for legal purposes.

The similarity between the terms assault rifle and assault weapon is, apparently, deliberate, intended to cause confusion between an actual valid definition and the made up one. To confuse non enthusiasts into thinking the laws applied to actual military class guns, instead of mere cosmetic look alikes. it worked quite well. To this day there are many shooters, and a majority of the public that still do not understand the small, but vital difference between the proper correct definitions of these terms.

Adding to the confusion is the fact that online dictionaries and even the slower to change printed ones have used the terms indiscriminately. We are taught (falsely) to look to dictionaries for the correct proper definition of words, but the reality is that (and they will tell you so if you ask) that dictionaries reflect the definition of terms as found in popular usage. With the agenda driven media (and members of govt) constantly using inaccurate and misleading terms for the items under discussion, the public soon came to accept that the terms were actually valid, and once they became established in popular usage, dictionaries reflected that fact, and since it was in the dictionary, the misuse was further re-enforced.

I advise all shooters (and especially posters in L&CR) to please do some research and understand the actual valid definitions, as well as the legal definitions of the terms machine gun, assault rifle, and assault weapon, etc. so that we may discuss such things without adding to the confusion already existing.
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Old January 10, 2009, 10:07 AM   #24
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Quote:
Actually it was Bush(41) in 1989 that banned the importation. What he essentially did was to order ATF to re-examine the definition of "sporting firearms." As a result, a whole list of firearms were banned from importation because they had too many "military style" features. Any rifle with a pistol grip and detachable magazine suddenly became "not suitable for sporting purposes."
The current standard for whether or not a firearm is suitable for sporting purposes is whether it takes a "large capacity military magazine" and some cosmetic stuff (stocks, etc.). This is why the Saiga can be imported despite being essentially an AK. It is also worth noting that while the initial determination of "sporting purposes" was done via executive power only, Congress has since written that definition into law.

Quote:
What Clinton did was make a deal with China. If they would quit importing Norinco AKs, SKSs and ammunition, he would grant them "Most Favored Nation" status.
Actually, the Clinton Administration banned a large number of products from North China Industries (which includes Norinco) due to use of slave labor, child labor and other practices not in keeping with human rights. GWB actually expanded this ban to all products by North China industries (which makes everything from firearms to washing machines).
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