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Old January 9, 2013, 11:52 PM   #98
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,771
Originally Posted by Daugherty16
...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.

Originally Posted by Daugherty16
...And what would be the process for challenging it in court...
It will depend on the exact situation.

Originally Posted by Daugherty16 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.

Originally Posted by Daugherty16
...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.
"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
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