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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