Executive Orders

There won’t be any new gun control laws coming from the legislature any time in the near future. Why not? Because the President wants them. The Republicans have done a bang-up job of playing the obstructionist card the last few years, and I’ve little doubt they’ll continue to do their best to deny him anything they can.

So, will he try to pull something “under the radar?” One of the concerns I frequently hear is that he’ll resort to passing legislation through executive orders.

That’s not how it works.

We don’t have an exact definition of what an executive order is, nor do we know the full limits. Authority for them is attributed to Article II, Section 5, which states the President “shall take Care that the Laws be faithfully executed.” To this end, executive orders are generally understood to grant the President the authority to enforce or facilitate a certain law.

But they are not used to make laws.

The Supreme Court spoke on the matter in 1952, finding that President Truman’s order placing steel mills under government control overstepped his authority. In 2005, the Court ruled in Hamdan v. Rumsfeld that President Bush lacked the authority to enact war tribunals via such orders.

So, enacting new gun regulations? I don’t see that flying, particularly since the conservative wing of the Court still retains vivid memory of the dressing-down he gave them in front of the whole nation during the 2010 State of the Union address. I’d imagine they’d love the opportunity to tear such an order to pieces, not only on the basis of Heller, but on general principle. In such a case, the President would find himself generating an unfortunate precedent that would further limit his reach.

There is an urban myth that President George H.W. Bush enacted an import ban on “assault weapons” in 1989 in the wake of a schoolyard shooting in Stockton, California. No such order was ever issued.

In 1984, the ATF had enacted rulings 94-1 and 94-2, finding that Striker-12 and Street Sweeper shotguns were not eligible for import because they were not “particularly suitable for sporting purposes” as delineated in 18 U.S.C. 925 (d)(3). Both rulings went largely unnoticed, and they withstood the faint challenge that was voiced. Nonetheless, the horse was out of the barn, and the “sporting purposes” clause would be a thorn in our side from then on.

In early 1989, the ATF had enacted a temporary moratorium on the importation of 43 semiautomatic rifles on the basis of lacking “sporting purpose.” Following the shooting, William Bennett pressured the President on the issue, and the President quietly gave the nod to the ATF, but there was never an executive order issued on the matter.