Thursday, January 10, 2013

Obama Cannot Create Laws Through Executive Order

Vice President Biden has said Obama may well impose new gun control laws with the stroke of a pen, thus avoiding a heated fight with Congress.  President Obama is not the first president to invoke Executive Orders and he won’t be the last.  U.S. Presidents have issued Executive Orders since the 1780’s and usually they were issued to help officers and agencies of the executive branch manage the operations within the federal government itself. 

There is no Constitutional provision or statute per se that unequivocally permits executive orders, however, there is a vague grant of "executive power" given in Article II, Section 1, Clause 1 of the Constitution.  There were no rules governing the use of Executive Orders until 1952.  In 1952 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.

Before the Youngstown v. Sawyer Supreme Court ruling, some Presidents used EO’s with impunity.  FDR used an Executive Order (EO 9066) to grant authority to the military to forcibly intern Japanese-Americans for the duration of WWII.  Article 1, Section 1 of the Constitution is a vesting clause, granting all the federal government's legislative authority to Congress.  The Vesting Clause establishes the principle of separation of powers by specifically giving to each branch of the federal government only those powers it can exercise and no others.  This means that no branch may exercise powers that properly belong to another (e.g., since the legislative power is only vested in Congress, the executive and judiciary may not enact laws).

Article 1, Sec 1 should legally prevent President Obama from making new gun-control laws through Executive Order because the Constitution gives that authority to Congress.  The Tenth Amendment should also prevent the Obama regime from being able to force their new gun laws down the throats of the 50 states.  The Mack-Printz v. United States ruling in 1997 declared that the states or their political subdivisions “are not subject to federal direction.” The issue of federal authority is defined even further in this most powerful Tenth Amendment decision. 

Arizona Sheriff Richard Mack and Montana Sheriff Jay Printz sued the Clinton administration because of the unconstitutionality of certain interim provisions of the Brady Handgun Violence Prevention Act.  The opinion of the majority of the Supreme Court in the Mack/Printz decision reestablished states rights granted to them by the Tenth Amendment.  Justice Scalia opined for the majority stating, “…the Constitution’s conferral upon Congress of not all governmental powers, but only discreet, enumerated ones.”  Scalia went on to state, “The powers not delegated to the United States by the Constitution…are reserved to the States respectively, or to the people.” 

To clarify this point, we need to understand that the powers and jurisdiction granted to the federal government are few, precise, and expressly defined. The feds have their assignments within constitutional boundaries and the states have theirs, as well. Scalia also mentions this, “It is incontestable that the Constitution established a system of dual sovereignty” and that the states retained “a residuary and inviolable sovereignty.”

Scalia even goes so far as to detail who is responsible to keep the federal government in their proper place, if or when they decide to go beyond their allotted authority. In doing so he quotes James Madison, considered to be the father of our Constitution, “The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority [federal government] than the general authority is subject to them, within its own sphere.” (The Federalist # 39).

I don’t want to predict what Obama will do through Executive Order, but if he tries to make new gun control laws with the stroke of a pen, we have precedent on our side to prevent it.  Of course that precedent doesn’t mean a thing unless we have some real patriots that are willing to take on the mighty Obama regime.    

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