The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Closed Thread
 
Thread Tools
Old November 13, 2012, 12:38 PM   #1
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,086
Executive Orders

The possibility of any new gun control laws passing through the legislature is almost nil. When I explain this to people, their reaction is "well, then the President's just going to do it through an executive order! ZOMG!"

That's not how it works.

Executive orders exist for the President to clarify or facilitate enforcement of existing laws. They are not meant to enact new ones. The Executive branch does not have the power to create legislation.

So, what is an executive order? We don't really know, as they aren't specifically defined in the Constitution.

Authority for them is vaguely attributed to Article II, Section 5, which states the President "shall take Care that the Laws be faithfully executed." They're a mechanism for execution, not creation.

The Supreme Court has come down on Presidents who've tried to overstep their authority via EO's before. They spoke on the matter in 1952, finding that President Truman's order placing steel mills under government control overstepped his authority. In 2005, the Court ruled in Hamdan v. Rumsfeld that President Bush lacked the authority to enact war tribunals via such orders.

It's unlikely the current White House would try to enact new regulations via executive order, especially with Heller and McDonald being the 800lb gorillas in the living room. Doing so would trigger a court challenge that would not only overturn the ordinance in question, it would set further limits on what could be done with such orders.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old November 13, 2012, 01:27 PM   #2
CowTowner
Senior Member
 
Join Date: October 17, 2007
Location: Cowtown of course!
Posts: 1,119
Quote:
It's unlikely the current White House would try to enact new regulations via executive order, especially with Heller and McDonald being the 800lb gorillas in the living room. Doing so would trigger a court challenge that would not only overturn the ordinance in question, it would set further limits on what could be done with such orders.
Are we so sure that the current White House cares about future limits?
__________________
NRA Chief Range Safety Officer, Home Firearm Safety and Pistol Instructor
"There are three classes of people: those who see, those who see when they are shown, those who do not see."
Leonardo da Vinci
CowTowner is offline  
Old November 13, 2012, 01:29 PM   #3
Woody55
Senior Member
 
Join Date: June 19, 2012
Location: East Texas
Posts: 407
I agree with the OP.

The level of paranoia can be astounding. And self defeating.

And even though President Obama is not going to have another term, he is going to have to consider Democrats in Congress who are going to run in two years.
Woody55 is offline  
Old November 13, 2012, 03:01 PM   #4
CharlieDeltaJuliet
Senior Member
 
Join Date: July 25, 2012
Posts: 750
Great post sir. People need to take a breath and calm down and realize that the President cannot wave a magic wand and make it so. I am glad to see this post to calm some who have already began to panic.
__________________
" The strongest reason for the people to retain the right to
keep and bear arms is, as a last resort, to protect
themselves against tyranny in Government.
..." - Thomas Jefferson
CharlieDeltaJuliet is offline  
Old November 13, 2012, 03:27 PM   #5
thallub
Senior Member
 
Join Date: November 20, 2007
Location: South Western OK
Posts: 2,067
Thanks, Tom Servo.

Quote:
The level of paranoia can be astounding. And self defeating.
Indeed it is.

A link to presidential orders back to Hoover:

http://www.archives.gov/federal-regi...sposition.html
thallub is offline  
Old November 13, 2012, 03:36 PM   #6
nate45
Senior Member
 
Join Date: July 15, 2007
Location: Illinois
Posts: 3,746
I wish people would wait till at least an idea was proposed. Speculating on what the President might do, when he hasn't even proposed anything yet, seems pointless to me too.
I know, I know, he mentioned AWB II in a debate, but we all know that legislation won't be brought up either, at least not for 2+ years. Its called lip service to part of your base, the other side does it too on certain issues, in case anyone hasn't noticed.
__________________
"No free man shall ever be debarred the use of arms."- Thomas Jefferson
ΜΟΛΩΝ ΛΑΒΕ
(>_<)
nate45 is online now  
Old November 13, 2012, 07:05 PM   #7
rebs
Senior Member
 
Join Date: January 10, 2012
Posts: 2,196
What about the NATO treaty ? Can it be shoved down our throats ?
rebs is offline  
Old November 13, 2012, 07:12 PM   #8
Atbat82
Member
 
Join Date: September 28, 2012
Location: North Haven, CT
Posts: 31
Treaties generally take 2/3s of the senate "advise and consent" before the president can sign and ratify them. I see no reason why this treaty would be any different.

Of course, this would hardly be the first time I was mistaken.
Atbat82 is offline  
Old November 13, 2012, 07:45 PM   #9
BarryLee
Senior Member
 
Join Date: July 29, 2010
Location: The ATL (OTP)
Posts: 2,665
So, can EOs be used to implement additional fees and restrictions on gun purchases? I’m not talking about outlawing such purchases or making us subservient to the Blue Berets, but making the process more expensive and onerous.

I know we’ve discussed the possibility before, but exactly what would be the procedure for a Government Agency to add new fees, record keeping or other restriction onto the purchase of firearms? Would it require the Legislative Branch or could it be done without their involvement?
__________________
A major source of objection to a free economy is precisely that it ... gives people what they want instead of what a particular group thinks they ought to want. Underlying most arguments against the free market is a lack of belief in freedom itself.
- Milton Friedman
BarryLee is offline  
Old November 13, 2012, 07:50 PM   #10
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Quote:
It's unlikely the current White House would try to enact new regulations via executive order
For some people Tom the end justifies the means. Ive read enough of executive orders since I joined TFL to know that in some cases they do seem to be used to enact laws without it being called a law... Point in case would be the status of Interpol officers...

No need for me to go off into the weeds on it but per Executive order Interpol officers have almost unlimited powers within the boundaries of our nation... My point being this does seem to be a very law like effect...

I agree the vast majority of Executive orders don't fall into the law like category but even a few is a worry.
__________________
Molon Labe
BGutzman is offline  
Old November 13, 2012, 08:05 PM   #11
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,086
Quote:
I know we’ve discussed the possibility before, but exactly what would be the procedure for a Government Agency to add new fees, record keeping or other restriction onto the purchase of firearms? Would it require the Legislative Branch or could it be done without their involvement?
The ATF could add those, as it did in 1989, but at this point, it would trigger public outrage and court challenges. The matter would also be subject to review by the House, who would likely quash it. Remember that the House controls the budget for the ATF, and that the ATF isn't too popular in those chambers right now.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old November 13, 2012, 09:43 PM   #12
WyMark
Senior Member
 
Join Date: January 10, 2011
Location: Wyoming
Posts: 221
Quote:
No need for me to go off into the weeds on it but per Executive order Interpol officers have almost unlimited powers within the boundaries of our nation... My point being this does seem to be a very law like effect...
Hard to go off into the weeds when that is where you started from. If you want to look at if from a fact based perspective, this article provides a pretty good starting point and some good background.

http://abcnews.go.com/blogs/politics...g-interpol-do/
WyMark is offline  
Old November 14, 2012, 12:58 AM   #13
gc70
Senior Member
 
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,476
Quote:
Originally Posted by BarryLee
I know we’ve discussed the possibility before, but exactly what would be the procedure for a Government Agency to add new fees, record keeping or other restriction onto the purchase of firearms? Would it require the Legislative Branch or could it be done without their involvement?
To expand on Tom Servo's response, the answer to the question depends on the specific language in individual laws. Laws can range from very specific (i.e. "the Agency may charge an application fee of no more than $5.00") to very open-ended (i.e. ""the Agency may charge an application fee"). If a law is very specific, a federal agency can only do what the law specifies. If a law is more open-ended, a federal agency has flexibility to act within whatever limits (if any) are contained in the authority granted by the law.

Just as Tom pointed out about executive orders, federal agencies can only act within the boundaries of existing laws.
gc70 is offline  
Old November 14, 2012, 01:28 AM   #14
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,086
The topic at hand is executive orders and what they could cover.

It is not health care, or which politicians confront whom in the shower. If your post was deleted, consider why that might have been.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old November 14, 2012, 08:40 AM   #15
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Quote:
International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments , except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.

(c)

Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.


(d)

Insofar as concerns customs duties and internal-revenue taxes imposed upon or by reason of importation, and the procedures in connection therewith; the registration of foreign agents; and the treatment of official communications, the privileges, exemptions, and immunities to which international organizations shall be entitled shall be those accorded under similar circumstances to foreign governments.
Heres a little selection of the law where the executive order says Interpol is covered by.... The executive order is used to give Interpol (Regans EO) these immunities. (Public Law 79-291) My point being that if an executive order can given this kind of power to any group than what else can be done. My point had nothing to do with Mr. Obamas subsequent order on this issue. I do however believe this administration believes the end justifies the means on anything it wants to accomplish. (See operation F&F)
__________________
Molon Labe

Last edited by BGutzman; November 14, 2012 at 03:13 PM.
BGutzman is offline  
Old November 14, 2012, 09:17 AM   #16
jmortimer
Junior member
 
Join Date: January 24, 2010
Location: South West Riverside County California
Posts: 2,763
We all know that EOs can have great effect. Millions of illegal alien "youths" just got de facto amnesty until the POTUS is gone and probably forever. We all know that a ban on the importation of firearms/ammo/magazines is but an EO or "Sporting Use" Regulation away. POTUS has stated he will make "hope and change" with or without congress. Exhibit "A" is the EO amnesty for millions of illegal aliens. That is real change you can believe in. I believe the O/P wrong. We shall see.
jmortimer is offline  
Old November 14, 2012, 10:17 AM   #17
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,539
Quote:
Originally Posted by jmortimer
...That is real change you can believe in. I believe the O/P wrong. We shall see....
Well the OP is absolutely correct about what an Executive Order is. That doesn't mean an Executive Order can't have a noticeable effect in the real world. But it still is not a law or a regulation, it's still subject to the underlying statute or regulation it relates to, and it still is subject to constitutional limitations.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old November 14, 2012, 10:20 AM   #18
jmortimer
Junior member
 
Join Date: January 24, 2010
Location: South West Riverside County California
Posts: 2,763
^ From the O/P - you are wrong
"...people, their reaction is "well, then the President's just going to do it through an executive order!""

and
"...it's unlikely the current White House would try to enact new regulations via executive order..."
I disagree with both the O/P and your post. BO and the EO, a match made in ...

Last edited by jmortimer; November 14, 2012 at 10:48 AM. Reason: Not sure what ZOMG is or where it came from
jmortimer is offline  
Old November 14, 2012, 10:45 AM   #19
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,539
Quote:
Originally Posted by jmortimer
^ From the O/P - you are wrong
"...people, their reaction is "well, then the President's just going to do it through an executive order! ZOMG!""

and
"...it's unlikely the current White House would try to enact new regulations via executive order..."
I disagree with both the O/P and your post. BO and the EO, a match made in ...
Your post is pretty much unintelligible but the facts are:
  • A President can't "just do it through an Executive Order." An Executive Order must be pursuant to an underlying statute or regulation and be consistent with the underlying statute or regulation, and an Executive Order must be constitutional. Executive Orders are subject to challenge in court.

  • An Executive Order is not law. As the OP put it:
    Quote:
    Originally Posted by Tom Servo
    ...Executive orders exist for the President to clarify or facilitate enforcement of existing laws. They are not meant to enact new ones. The Executive branch does not have the power to create legislation....
    And legally that is absolutely correct.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old November 14, 2012, 12:36 PM   #20
gc70
Senior Member
 
Join Date: May 24, 2005
Location: North Carolina
Posts: 2,476
..

Last edited by gc70; November 14, 2012 at 10:33 PM.
gc70 is offline  
Old November 14, 2012, 02:00 PM   #21
thallub
Senior Member
 
Join Date: November 20, 2007
Location: South Western OK
Posts: 2,067
The Obama Executive order involving Interpol is IAW the International Organizations Immunities Act of 1945: 22 USC Chapter 7, Subchapter XVIII:

http://www.law.cornell.edu/uscode/te...bchapter-XVIII

Numerous international organizations enjoy the same priviledges that Obama granted Interpol. Interpol was not granted diplomatic immunity as was stated in the sensational correspondence put forth by the muck stirrers.

Interpol does not have international sleuths who travel willy nilly all over the world at will.

Snopes on the Obama executive order concerning Interpol:

http://www.snopes.com/politics/crime/interpol.asp


More:

Quote:

The International Organizations Immunities Act, signed into law in 1945, established a special group of foreign or international organizations whose members could work in the U.S. and enjoy certain exemptions from US taxes and search and seizure laws.

Experts say there are about 75 organizations in the US covered by the International Organizations Immunities Act — including the United Nations, the International Atomic Energy Agency, the International Monetary Fund, the International Committee of the Red Cross, even the International Pacific Halibut Commission and Inter-American Tropical Tuna Commission.

(These privileges are not the same as the rights afforded under "diplomatic immunity," they are considerably less. "Diplomatic immunity" comes from the Vienna Convention on Diplomatic Relations, which states that a "diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." That is NOT what the International Organizations Immunities Act is.)

..............................................................................................................

Each president has designated some organizations covered by the International Organizations Immunities Act.

President Nixon did it for the United International Bureaux for the Protection of Intellectual Property.

President Reagan bestowed these privileges to the African Development Bank, the International Boundary and Water Commission, United States and Mexico, and the World Tourism Organization, among others.

President Bush through Executive Orders covered the European Central Bank, the African Union and the Global Fund to Fight AIDS Tuberculosis and Malaria.

http://abcnews.go.com/blogs/politics...g-interpol-do/

Last edited by thallub; November 14, 2012 at 02:23 PM.
thallub is offline  
Old November 14, 2012, 03:34 PM   #22
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Quote:
Interpol was not granted diplomatic immunity or as was stated in the sensational correspondence put forth by the muck stirrers.
The quote I put in my previous post is taken verbatum from the law so it seems they do have diplomatic immunity, or simply immunity but again Im not a lawyer I only know common english so I could well be wrong. However the whole subject is missing the point I keep trying to get too.

My point being if an executive order can cause a vast reinterpertation of any law then it in itself becomes a law making tool. That is not to say that every EO is creating a law but rather to illuminate the level of power that can be used.

Certainly EOs can and have been reviewed but have been found in a least a case or two to exceed constitutional authority. That alone tells me in my layman way that this is a potential threat to freedom. I see no clear mandate in the constitution for EO's. I see this as a path that is ripe for abuse and given the nature of any given administration a tool that might well be misused. Freedom is not subject to presidential whim (regardless of person or party) and the fact that it takes a court review to undo a EO shows its power for misuse.

Repetitively good people all over assume others read whatever given document and interpert it the same way they do, when in fact others do not. Who says the president (any president) knows what congress intended..

In any case my point remains, some have no problem using any means to get to an end and EO is a potentially potent way to do so, even if the EO ultimately gets challenged..I dont really care about the Interpol EO, its just a tool in a illustration...
__________________
Molon Labe

Last edited by BGutzman; November 14, 2012 at 05:59 PM.
BGutzman is offline  
Old November 14, 2012, 07:30 PM   #23
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,539
Quote:
Originally Posted by BGutzman
The quote I put in my previous post is taken verbatum from the law so it seems they do have diplomatic immunity,...
Nope, it's not diplomatic immunity. The immunity is at the organizational level and doesn't appear to extend to accredited agents.

Quote:
Originally Posted by BGutzman
...My point being if an executive order can cause a vast reinterpertation of any law then it in itself becomes a law making tool....
How do you reach that conclusion in connection with the International Organizations Immunities Act of 1945? Your quarrel is with Congress (of 1945). Congress, in 1945, expressly gave that authority to the President in connection with this law. See 22 USC 288 (emphasis added):
Quote:
For the purposes of this subchapter, the term “international organization” means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter....
Quote:
Originally Posted by BGutzman
...Certainly EOs can and have been reviewed but have been found in a least a case or two to exceed constitutional authority. That alone tells me in my layman way that this is a potential threat to freedom...
What you see is the system working as intended.

There always has been, and always will be, disagreements about what is or is not constitutional or what a law does, or does not, mean as applied. Executive Orders have been, and no doubt will in future be, challenged, found to have been issued in excess of proper authority and consequently invalidated in whole or in part by the courts. Congress has enacted, and no doubt will in future enact, laws challenged, and found to be unconstitutional. Courts have issued ruling found to be unpalatable resulting in the enactment of laws to avoid the effects of those rulings.

That all is simply our system of "checks and balances" at work and operating as originally intended. That is why we have a separation of powers.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old November 14, 2012, 10:03 PM   #24
2damnold4this
Senior Member
 
Join Date: August 12, 2009
Location: Athens, Georgia
Posts: 1,278
George H. W. Bush declared some firearms as ineligible for importation by saying they had no sporting purpose. If Barack Obama uses an executive order to implement gun control, I would expect it to be something like that.
2damnold4this is offline  
Old November 14, 2012, 11:02 PM   #25
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,086
Quote:
George H. W. Bush declared some firearms as ineligible for importation by saying they had no sporting purpose.
Actually, there was never an executive order in 1989. The ATF had already banned 43 guns from importation, and the President allowed that ban to stand.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Closed Thread

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 02:05 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.15212 seconds with 7 queries