Apparently Biden is recommending nineteen actions Obama should take through executive order. I want to talk briefly about executive orders, because there’s a lot of FUD floating around on the Internets about them.
For one, it’s not an end-run around Congress. Under the Gun Control Act, Congress has already granted authority to the executive branch to execute certain aspects of federal gun laws. The President’s power on this is, unfortunately, fairly broad, but it is not unlimited. For instance, only firearms and ammunition that are “particularly suitable for sporting purposes,” are permitted to be imported into the United States. The executive branch gets to decide what determines that.
We already likely know what some of those 19 recommendations will be because Bloomberg spent all that time and money hiring consultants to hammer them out ahead of time. They can do serious damage without any action from Congress. This is truth. But it’s not some kind of crazy power grab. We’ve benefitted, since the Gun Control Act, from having Presidents who were not that disposed to use the executive power to really screw us.
It’s a little known fact, but almost all shotguns in the United States would be classified as destructive devices except for the fact that most shotguns have been classified by the Attorney General as particularly suitable for sporting purposes. That classification can be changed. The Striker-12 was reclassified along these lines by the Clinton Administration, and is now a destructive device.
It’s quite possible that President Obama will enact sweeping and wide ranging changes to our firearms regulations and policies, and force us to spend millions of dollars suing the Administration in court over every separate issue. We could be in for a rough ride, indeed.
Wow, a good look at an issue that isn’t the usual PSH you usually show with something like this.
Not saying we won’t be in for a hard time, but, even if congress has ceded some of its power to the executive, I don’t think there is anything stopping any particular initiative via legislation.
If they don’t, it’s because they don’t want to, and are happy to have gotten what they always wanted anyway (gun control) while being left off the hook for having enacted it themselves. That goes for both parties, but more particularly, for Republicans, since we can assume the Democrats would have had the balls to straight-up vote for gun control, themselves. But if the president does anything by executive order, expect even most of our pre-election fire-eaters to whine that their hands are tied.
(I’m sorry, but I’ve been kind of pissed off at congresses ceding authority to presidents, ever since they did that for Johnson with Vietnam, which had a rather direct effect on my life. Cowardly, cowardly bastards!)
In legal parlance, how much power the legislative branch can cede to the executive is known as the doctrine of non-delegation. The 20th century basically saw it weakened mostly to death, to the point where Congress can’t really authorize the President to go forth and do good, but it’s getting horribly close to “Go forth and do good in this area.” It’s one of the worst thing the courts have done to the Constitution. A lot of people focus very much on the Commerce Clause, and the abuses that go along with it, but the weakening of the non-delegation doctrine has done far more to promote big and unaccountable government, in my opinion, than any of the Commerce Clause abuses.
Except for the Line-Item Veto/Balanced Budget Amendment…that somehow got deemed unconstitutional, while the War Powers Act did not.
Seriously, it’s so !@#$% up that it’d be funny if it were not so sad.
Blame both on Watergate; prior to that the President exercised a small c constitutional power to not always spend money. Don’t worry about the War Powers Act, to quote Wikipedia, which gets it right to my memory:
I completely agree. It still boggles my mind that we haven’t yet started a Revolution over the fact that bureaucrats unaccountable to the People can write laws–er, regulations–and determine what fines people are going to pay for breaking them, and even use threats to prevent people from being charged under these regulations, from seeking court recourse.
It just makes me sad and angry just thinking about all this! And I don’t know what to do about it, since Republicans are just as eager as Democrats to support such structure, while the Libertarians and Constitutionalists and other third parties are so small, it’s futile to vote for them (which I sometimes do anyway, as a futile gesture…)
Andy, Democrat Senators desires not to lose their seats have done far more to protect us than you give them credit for. And most executive orders are rather mundane. One thing, which people seems to confuse (and i think both the reporter AND Sebastian have here) is the distinction between executive orders on the one hand (clear direction from the president to exeutive branch staff on the policies they will follow in their implementation of the law) and executive action (basically everything else from decisions on appointments and prosecutions, which are easy for him to do, to rule makings which he has far less leeway over and are controlled by the Administrative Procedures Act and a robust body of law and are very much subject to both court review as well as interference by Congress via the appropriations and budget process in addition to their powers to conduct oversight, request documents, delay the process, insert materials into the admijistrative record, engage career staff concerned not with politics but the long term funding of their role within the agency and generally delay for great periods of time the ability of an agency to act.
Most of the damage I outlined, I don’t believe would take any rule making. ATF does a lot of their business with determinations and policies, which I assume don’t bring it under the APA. I’m pretty sure ammo, magazines, parts and firearms importation could be stopped tomorrow by executive order, since none of it is in the CFR. Or does APA cover more than that?
“Democrat Senators desires not to lose their seats have done far more to protect us than you give them credit for.”
Yes, I understand that, but would add that it is a non-partisan phenomenon; only fear of our votes controls either party, never, ever ideology.
But thanks, because I have shown myself to be enough of an apostate on so many things, that I wouldn’t want to get caught saying anything that could be construed as speaking well of Democrats. :-)
“force us to spend millions of dollars suing the Administration in court over every separate issue”
Then it’s time we open our wallet and fight the fight.
Well if he does, they’ll most certainly be a lawsuit. And note that Heller and Miller say that the 2nd is for self defense, not sporting purposes. So they could possibly lose on 2nd Amendment grounds.
Not exactly the best time to challenge the “sporting purposes” clause, but you go with what you have to.
I think its the best time
I’m curious…how well would “particularly suitable for sporting purposes†stand up to a constitutional challenge in light of SCOTUS finding in Heller that the right covers handguns for self defense? If we follow ATF’s *cough* logic *cough* then none of the defensive shooting competitions are ‘sport’, so even a ‘not in the gun-grabbers sights (yet)’ revolver would fail the ‘sporting purposes’ test…even though it is still a somewhat common self defense platform.