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Is An Executive Order a Law that Must be Obeyed?
Political Outcast ^ | January 10, 2013 | Gary DeMar

Posted on 01/10/2013 11:32:05 AM PST by LucianOfSamasota

There’s talk that President Obama will ignore Congress and issue Executive Orders to implement new gun regulations over against the clear reading of the Second Amendment to the Constitution. Is an Executive Order a law? Will we be obligated to obey it?

Executive Orders have a long history. Republicans and Democrats have issued them. Only a few of them have been overturned by the courts.

Neither Republicans nor Democrats do much about Executive Orders they don’t like since both parties issue them. This is how the Washington game is played.

Republicans and Democrats like Executive Orders on difficult issues because it stops the legislative process that they’ll have to participate in and eventually vote yes or no. They can always tell the voters back home, “Well, I would have voted against that if the President hadn’t issued an Executive Order. Golly gee willikers, now my hands are tied.” Right.

An Executive Order is only valid if it’s done within the jurisdictional authority of the President’s constitutional authority. To rule against the Second Amendment is not a presidential prerogative. If it is, then the President could turn his attention to the First Amendment and issue an order that newspapers can no longer criticize him. Conservative talk radio would die a quick death if the President issued an Executive Order saying that the freedom of speech had to be limited in several ways, one of which was negative political speech, especially about him.

(Excerpt) Read more at politicaloutcast.com ...


TOPICS: Constitution/Conservatism; Culture/Society; Government; Philosophy
KEYWORDS: banglist
Don’t get me wrong. I do believe that President Obama would like to do all these things. He’s mad with power. He has a vendetta against America.

Chris Matthews of MSNBC made a statement about how President Obama should have been treated by presidential challenger Mitt Romney in their second debate. It was the fact that Gov. Romney actually challenged the President that led Matthews to go Gestapo on Romney:

“I don’t think [Mitt Romney] understands the Constitution of the United States… He’s the president of the United States. You don’t say, ‘you’ll get your chance.’”

Yes you do. President Obama is an elected official. He’s not a king. The king battle was fought a long time ago at Runnymede in 1215.

If the President and other anti-Second Amendment advocates want to limit our freedoms, then they can go through the amendment process. An Executive Order is the chicken’s way out. It’s also unconstitutional.

The Democrats know this. That’s why they’re sending out Vice President Biden to soften the rhetoric:

“The president is going to act. There are executive 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.”

Did you see it? “Legislative action that we believe is required.” In terms of the Separation of Powers, the President does not have the constitutional authority to legislate. Of course, that hasn’t stopped him or any other president.

Biden went on to say that “this is a moral issue and that ‘it’s critically important that we act.’” Morally, the President can’t ignore an Amendment to the Constitution. How is banning guns for everyone the moral thing to do when only a tiny fraction use guns illegally? How will banning guns to stop immoral people from using whatever they can find to do harm?

Timothy McVeigh used kerosene and fertilizer to kill 169 people. Abortion doctors use medical instruments to kill pre-born babies? A man was poisoned with cyanide before he could cash in his $1 million dollar lottery ticket.

1 posted on 01/10/2013 11:32:08 AM PST by LucianOfSamasota
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To: LucianOfSamasota

Executive orders impact only the executive branch (well they are supposed to). So The One can order ATF to do lots of antigun things. I think he could order FBI, technically in the judicial branch I think, to set NICS to say NO for every forbidden gun.

Naturally Boehner and the republicans in the House would instantly file impeachment papers, so don’t worry. /s


2 posted on 01/10/2013 11:37:07 AM PST by DBrow
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To: LucianOfSamasota
IIRC, Bill Clinton wrote an E.O. proclaiming a rotary-magazine shotgun called a "street-sweeper" to be an NFA weapon.
I do not recall any event where such a weapon had been used in a high-profile crime at the time.

I wouldn't be surprised if Barry tried something similar with a whole list of scary black rifles, declaring them to be NFA weapons that we can all own if we want - once we jump through the NFA hoops.

Whatever they're up to you can be sure it will be an indirect attack while clueless Feinsteins introduce outright banning legislation, knowing it will go down in flames if it ever reaches a vote.

When one hand is waving noisily, it's time to look at what the other hand is doing.

3 posted on 01/10/2013 11:43:59 AM PST by grobdriver (Sic semper tyrannis!)
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To: LucianOfSamasota

nope not by me as i am going to file to the supremes - first - and then...


4 posted on 01/10/2013 11:46:47 AM PST by ldish (Give me Freedom and Liberty or let's kick some a**!)
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To: DBrow

Newt Gingrich last night on FOX said that obama can issue executive orders ..... but only Congress can authorize funding to carry them out.

Usually no money, means no action can be taken, ie orders to ATF or whoever to register guns, seize them or whatever

So, will our GOP stalwarts in Congress flex their own power, or not?


5 posted on 01/10/2013 11:47:07 AM PST by silverleaf (Age Takes a Toll: Please Have Exact Change)
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To: DBrow
“Executive orders impact only the executive branch...”

You are correct. He can issue orders to any of his agencies that deal with firearms to ban certain firearms, ammo, magazines, and register certain weapons,etc.. This will be done for the public safety.

Biden’s committee report comes out next Tuesday and then the president will issue executive orders soon after that, likely within a few days. He will do it.

6 posted on 01/10/2013 11:47:51 AM PST by Marcella (Prepping can save your life today. Going Galt is freedom.)
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To: LucianOfSamasota

I’m sure it would be no problem finding an opinion that says EOs have to be obeyed. I’m equally sure one could find millions of opinions that say “make me”.

Let him issue his damned EO. Let him watch the citizenry ignore him. The thousands and thousands of guns purchased in the last month weren’t bought so someone could have something to turn in.


7 posted on 01/10/2013 11:49:56 AM PST by muir_redwoods (Don't fire until you see the blue of their helmets)
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To: LucianOfSamasota
Is An Executive Order a Law that Must be Obeyed?

Well technically an executive order isn't a law at all, it's an instruction to an federal agency to interpret an existing law a certain way, and well, let's just say the president's own cabinet isn't going to disobey.

President's in the past have tried to stretch this into the realm of making law, the Supreme Court has been pretty firm that this is a no-no:

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.

Obama has been pushing the limits on "Youngstown" since he took office, his "backdoor amnesty" is on shaky legal ground and still being challenged by the courts, but at least he attempted to meet the standards of "Youngstown" by claiming he was clarifying that the head of DHHR had the discretion to delay a deportation order indefinitely.

Most legal experts say that an Assault Weapons Ban or Gun Registration Scheme by executive order would be blatant violation of "Youngstown" and likely to get struck down by the courts. So they predict if Obama does anything with executive order it will be much more limited in scope such as fiddling with the background check system or forcing additional record keeping requirements on gun stores.

8 posted on 01/10/2013 11:51:11 AM PST by apillar
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To: DBrow

NICS covers only three categories: handgun, long gun (rifle), shotgun. There’s no distinction if the buyer is purchasing an AR-15 or a Remngton 700.


9 posted on 01/10/2013 11:54:39 AM PST by M1903A1 ("We shed all that is good and virtuous for that which is shoddy and sleazy... and call it progress")
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To: silverleaf

“Usually no money, means no action can be taken, ie orders to ATF or whoever to register guns, seize them or whatever”

He won’t need extra money - just use the money his ATF/Homeland Security, FBI, etc., already have. He wants this so much, he would shut down any other programs they had going to get this one done.


10 posted on 01/10/2013 11:57:58 AM PST by Marcella (Prepping can save your life today. Going Galt is freedom.)
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To: grobdriver

When one hand is waving noisily, it’s time to look at what the other hand is doing.

Exactly what I’ve been thinking for the last few days: what are they actually doing while Bozo Biden is out saying clearly unconstitutional actions will be taken? To turn a phrase on its head: “Pay no attention to the man in front of the curtain”.


11 posted on 01/10/2013 11:59:18 AM PST by jagusafr (the American Trinity (Liberty, In G0D We Trust, E Pluribus Unum))
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To: M1903A1

My point is that NICS can be changed by EO to cover specifics like detachable mags, or semiauto.

I don’t think it can be changed to a registration system (legally), though.


12 posted on 01/10/2013 11:59:18 AM PST by DBrow
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To: DBrow

Whether he can succeed with EOs or not depends entirely on his correct estimation of the actual force that he can bring to bear. It no longer has anything to do with the Constitution.


13 posted on 01/10/2013 12:07:18 PM PST by arthurus (Read Hazlitt's Economics In One Lesson ONLINE www.fee.org/library/books/economics-in-one-lesson)
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To: DBrow

All of B-HO’s EOs need to be frozen until a judicial committe and an economic committe can look into their impact on the citizenry. Any negative impact should negate the EO.


14 posted on 01/10/2013 12:12:02 PM PST by abclily
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To: LucianOfSamasota

If an EO is in direct violation of the Constitution or a previous SCOTUS ruling - it would be struck down, probably by a 9-0 ruling.

Lets assume that Obama issues an EO banning hi-cap magazines.

SCOTUS has ruled that citizens have the right to possess firearms [District of Columbia v. Heller]. But, it also left open that restrictions on it might be passed by legislative action. However, an EO is an executive action - not a legislative action.

Putting poolitical ideology aside, if SCOTUS were to allow such an EO to stand - it would be ceding all of its legal and moral authority to exist. They might as well pack up their toys and retire, for they would be stating that the Executive Department can supercede the Constitution, the Legislative Department, and the Judicial Department by fiat.

This scenario is a turf war and SCOTUS would assert its authority [probably 9-0] in order to preserve the constitutional concept of the system of Checks and Balances.


15 posted on 01/10/2013 12:18:23 PM PST by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
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To: silverleaf
So, will our GOP stalwarts in Congress

Stalwarts? Stalwarts!? I have flashbacks to Jim Mora: Playoffs? Playoffs!!? LOL You have got to add that sarcasm tag after that kind of comment.

16 posted on 01/10/2013 12:19:41 PM PST by mc5cents
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To: LucianOfSamasota
Excutive orders are not bulls, nor Scripture, nor edicts, nor binding upon the people. They are directives to the government of the United States to perform certain objectives, instructions, policies, guidelines, wishes, or desires of the president. They are not binding upon the people.

So Obama can order the employees, agents, agencies, departments, and his own staff to carry out his wishes. He could, for example, order the federal government to carry out raids, confiscations, robberies, illegal activities (such as Fast and Furious), the Constitutionality of which could later be argued by the administration in court.

He really does seem to be pushing the people to openly rebel, so he can order his Department Homeland Security, the Internal Revenue Service, and those other federal agencies, to use all of that dum-dum, anti-personnel ammunition he's been buying up.
17 posted on 01/10/2013 12:22:43 PM PST by righttackle44 (Take scalps. Leave the bodies as a warning.)
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To: LucianOfSamasota

The question is do executive orders have to be obeyed? I say no illegal order has to be obeyed. At least by me anyway.


18 posted on 01/10/2013 12:30:02 PM PST by mosaicwolf (Strength and Honor)
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To: DBrow
I think he could order FBI, technically in the judicial branch I think,

Not! FBI is a part of the Justice Department. It is in the Executive Branch. Not Judicial or Legislative. The orders to the FBI must be constitutional and legal. As the chief law enforcement officer of the US Government, the president is sworn (hand on bible) to preserve protect and defend the US Constitution and uphold our laws.

19 posted on 01/10/2013 12:36:01 PM PST by Rapscallion (Obama is America's first tyrant....president in name only - PINO)
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To: righttackle44

omammy’s order is subject to immediate injunctive orders by a federal court if it even smells legislative. Everyone should calm down. Biden is an idiot and its all a big bluff. He can order agency procedures but he shall not abridge the 2nd amendment in any way what so ever. Jan 19 is national gun day. Everyone demonstrate. I will at my local gun store parking lot(which has sold 1000 firearms since Sandy Hook) and one buyer bough 10,000 rounds of AR 15 ammo!! Good man.


20 posted on 01/10/2013 12:37:18 PM PST by willardwx
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To: mosaicwolf
The question is do executive orders have to be obeyed?

The answer is "Yes" but it applies only to federal employees of the executive branch of the government. Of course executive orders must be legal and must not contradict either the constitution or the laws. The president is the nations highest law enforcement officer. He is sworn to protect and defend the constitution. That is why we are said to be led as a nation of laws, not of men.

The president is not the king of America, no matter what he thinks. He is more like a CEO of the Executive Branch of the government. He has no right to order the states using an executive order.

21 posted on 01/10/2013 12:44:31 PM PST by Rapscallion (Obama is America's first tyrant....president in name only - PINO)
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To: LucianOfSamasota
Article IV Section 4 guarantees to the states a Republican from of government. Lawmaking by executive fiat is not representative government.

-PJ

22 posted on 01/10/2013 12:44:47 PM PST by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: Rapscallion

Thanks, Rapscalion, I wasn’t sure.


23 posted on 01/10/2013 12:46:26 PM PST by DBrow
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To: All

I can’t remember where I heard this, and I’m not sure if this would be the angle that the President would take, but one one would simply issue an EO authorizing the removal of any legal barriers for litigation against gun and ammunition manufacturers, especially bullets. In other words, ammunition would be either priced out or litigated out of the economy. This wouldn’t address existing guns/ammunition, but additional litigation/taxes/excessive annual permit fees on existing guns could also impact ownership.

Everyone thinks that jack booted thugs will knock down everyone’s doors to pry the guns away from you...With the above, or similar strategies, you will be throwing them away, turning them in (if you have registered them previously).

This type of EO would allow the President maintain a stance that says that gun ownership is not illegal, and 2nd ammendment rights is not affected.


24 posted on 01/10/2013 12:50:14 PM PST by Maringa
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To: Lmo56
SCOTUS were to allow such an EO to stand - it would be ceding all of its legal and moral authority

God only knows how traitor Chief Justice Roberts would interpret the law however.

25 posted on 01/10/2013 12:53:00 PM PST by Rapscallion (Obama is America's first tyrant....president in name only - PINO)
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To: LucianOfSamasota
the President could turn his attention to the First Amendment and issue an order that newspapers can no longer criticize him.

Got a good laugh out of this one...

26 posted on 01/10/2013 12:54:42 PM PST by MAexile (Bats left, votes right)
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To: Rapscallion
the president is sworn (hand on bible)

That thar is funny....

27 posted on 01/10/2013 1:13:42 PM PST by Getsmart64
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To: silverleaf

“Newt Gingrich last night on FOX said that obama can issue executive orders ..... but only Congress can authorize funding to carry them out.”

WEl FUBO has “hinted” that he’s just going to ignore the debt ceiling and continue to spend, so we will see!


28 posted on 01/10/2013 1:46:16 PM PST by vette6387
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To: apillar

“Most legal experts say that an Assault Weapons Ban or Gun Registration Scheme by executive order would be blatant violation of “Youngstown” and likely to get struck down by the courts.”

Perhaps, and that would be encouraging. But state nullification would also come into play where those trying to enforce unconstitutional orders would be subject to arrest by local law enforcement. Conspiring to violate constitutional rights is in itself a crime:

“Section 241 of Title 18 is the civil rights conspiracy statute. Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same). Unlike most conspiracy statutes, Section 241 does not require that one of the conspirators commit an overt act prior to the conspiracy becoming a crime.

The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.”

http://www.justice.gov/crt/about/crm/241fin.php


29 posted on 01/10/2013 1:47:57 PM PST by ScottfromNJ
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To: apillar

“Most legal experts say that an Assault Weapons Ban or Gun Registration Scheme by executive order would be blatant violation of “Youngstown” and likely to get struck down by the courts. “

So we will find out in short order if Obama really is a pussy won’t we!


30 posted on 01/10/2013 1:51:34 PM PST by vette6387
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To: grobdriver
I wouldn't be surprised if Barry tried something similar with a whole list of scary black rifles, declaring them to be NFA weapons that we can all own if we want - once we jump through the NFA hoops.

There are provisions in the law to prevent the passage and enforcement of "Ex post facto" laws defined as :
Latin for "from a thing done afterward." Ex post facto is most typically used to refer to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10. see, e.g. Collins v. Youngblood, 497 US 37 (1990) and California Dep't of Corrections v. Morales, 514 US 499 (1995).

I'm not a lawyer (but I did stay in a Holiday Inn Express once) but it seems that if Congress is not permitted to pass Ex post facto laws I'd rather doubt the Supreme Court would allow an EO to criminalize actions that have already occurred. I would think requirements for registration and such might also be questionable as purchases already made are clearly legal. What goes forward from the date on the EO is a different kettle of fish. Put your 4473 forms in a safe place, it's the only proof you have of date of purchase.

Somebody with deep pockets like the NRA will need to pursue that avenue 'cuz you and me and that man behind the tree don't have the "drag" to even peek in the door.

Regards,
GtG

31 posted on 01/10/2013 2:03:06 PM PST by Gandalf_The_Gray (I live in my own little world, I like it 'cuz they know me here.)
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To: DBrow

I haven’t heard any sort of cohesive heartfelt condemnation from the “opposition party” (i.e., Republican Party leaders) to the daily threats against liberty made by this administration. It’s disturbing to think we need to depend on people like McConnell and Boehner to lead the defense of the Constitution and traditional American values ... but that’s where things stand today. Based on their actions over the past two years these men aren’t patriots — they’re politicians committed only to what is convenient and what benefits them.


32 posted on 01/10/2013 2:04:16 PM PST by glennaro
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To: LucianOfSamasota
If it is, then the President could turn his attention to the First Amendment and issue an order that newspapers can no longer criticize him.

That executive order is written and has been sitting on Obama's desk since January 2009. The first time anyone in the press criticized him he plans to sign it. It just hasn't happened yet.

33 posted on 01/10/2013 2:13:31 PM PST by pepsi_junkie (Who is John Galt?)
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To: Rapscallion
God only knows how traitor Chief Justice Roberts would interpret the law however.

I don't think that you get my point.

SCOTUS justices are elected for life tenure [if they choose]. This leaves them unbeholden to anyone.

Ever since SCOTUS asserted in Marbury v. Madison that "It is emphatically the province and duty of the Judicial Department to say what the law is.", the Court has stood as a last-ditch barrier [for good or bad] against run amok Legislative and Executive departments.

To affirm that an EO can supercede the Constitution would be for SCOTUS to abdicate ALL authority that it possesses. The President could then supercede ANY legislatively enacted law AND ANY SCOTUS ruling simply by writing out an EO. This would be the end of our republican form of government.

Congress and the Supreme Court might then as well be dissolved, since the President could simply override them through use of an EO.

Roberts [and the rest of SCOTUS] WILL NEVER allow this to happen. Thus, 9-0 decision AGAINST an unconsitutional EO.

QED ...

34 posted on 01/10/2013 4:03:48 PM PST by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
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To: Lmo56

I got your point. And I agree with you ( The words may be different but what we believe is the same.) Keep FReeping. Be strong. Do not weaken. You are right to believe in the constitution and the amendments.


35 posted on 01/13/2013 9:45:48 AM PST by Rapscallion (Obama is America's first tyrant....president in name only - PINO)
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To: LucianOfSamasota

Obama is unqualified per the Constitution to use any EO.

The 2A enforces it and if needed corrects the issue.


36 posted on 01/13/2013 9:49:10 AM PST by Eye of Unk (AR2 2013 is the American Revolution part 2 of 2013)
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