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View Full Version : Are Executive Orders SCOTUS Challengable?


choprzrul
12-22-2012, 3:44 PM
re: Assault weapon bans, mag limits, etc....


If Big O decides to circumvent congress and issues an EO, can that order be challenged directly to SCOTUS?

If not, can CA7's recent decision be leveraged and a suit be filed in that circuit to challenge an EO?

In other words, is there any recourse to a decree by King George ?

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Stewdabaker23
12-22-2012, 3:53 PM
If its an unconstitutional order there yeah.

choprzrul
12-22-2012, 3:56 PM
If its an unconstitutional order there yeah.

Therein lies the debate: who's version of 'Constitutional' are we talking about?

That is for SCOTUS to decide.

They fast tracked the Florida recount, so I am thinking that they can make quick decisions when conditions dictate.

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speedrrracer
12-22-2012, 4:18 PM
Yes, SCOTUS can haz the the last word on EOs (they've overturned two (http://en.wikipedia.org/wiki/Executive_order#Legal_conflicts)).

tiki
12-22-2012, 6:17 PM
I'm just not so confident SCOTUS will protect ARs and AKs.

rodngun762
12-22-2012, 6:25 PM
I'm just not so confident SCOTUS will protect ARs and AKs.

firearms that function semi automatically are certainly in common use for defense. so are magazines holding more than 10 rounds.

sholling
12-22-2012, 6:32 PM
IMNAL but a simple executive order banning arms lacks the force of law. I'm pretty sure he would have to use regulators to do the dirty work and that can be fought in court.

choprzrul
12-22-2012, 6:48 PM
So, O knows that an EO has a pretty good likelihood of being overturned rather quickly.

It seems to me that having an EO overturned would be a PR nightmare for the white house.

I'm guessing that they are weighing the chances of a SCOTUS overrule.

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speedrrracer
12-22-2012, 7:08 PM
I'm guessing that they are weighing the chances of a SCOTUS overrule.
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Doesn't pass the sniff test. They are weighing the chances of passing heavy-duty, anti-gun legislation through Congress, not some silly EO nonsense.

If they don't feel they can get the extra-strength anti laws passed, then they'll compromise and try to pass the regular-strength anti-gun laws. And so on.

No chance of EO, imo. Like you said, it's a path to embarrassment, not to getting what they want.

rodngun762
12-22-2012, 7:20 PM
Doesn't pass the sniff test. They are weighing the chances of passing heavy-duty, anti-gun legislation through Congress, not some silly EO nonsense.

If they don't feel they can get the extra-strength anti laws passed, then they'll compromise and try to pass the regular-strength anti-gun laws. And so on.

No chance of EO, imo. Like you said, it's a path to embarrassment, not to getting what they want.

He could EO the general importation of "military arms" and not that many people besides us would care, and it wouldn't have any 2A issues. you know the libs are all about destroying the "arms trade" and the "lords of war".

MontClaire
12-22-2012, 7:20 PM
You have the right to not obey unconstitutional, unlawful order no matter who it comes from. His EO is only good if people obey.;)

1859sharps
12-22-2012, 7:25 PM
I am a bit rusty on the finer details of the constitution, but does the President even have the authority to issue an executive order involving the 2nd amendment domestically?

I know there is some wiggle room on importation, but domestic sales, manufacturing and ownership?

hornswaggled
12-22-2012, 7:33 PM
Executive orders can be negated by SCOTUS if deemed an unconstitutional overreach of Presidential authority.

Sakiri
12-22-2012, 7:33 PM
I am a bit rusty on the finer details of the constitution, but does the President even have the authority to issue an executive order involving the 2nd amendment domestically?

I know there is some wiggle room on importation, but domestic sales, manufacturing and ownership?


Executive order I believe was added with that god awful Patriot Act. it just allows him to bypass Congress.

It'd be challenged. Heavily. And quickly.

mosinnagantm9130
12-22-2012, 7:40 PM
Executive orders cannot be used to create laws, they can only be used to clarify existing law, or "act to further a law put forth by the Congress or the Constitution."

See: Youngstown Sheet & Tube Co. v. Sawyer

mosinnagantm9130
12-22-2012, 7:41 PM
Executive orders cannot be used to create laws, they can only be used to clarify existing law, or "act to further a law put forth by the Congress or the Constitution."

See: Youngstown Sheet & Tube Co. v. Sawyer

SPUTTER
12-22-2012, 7:43 PM
Dick Cheney made the executive more powerful than it should be and by design. If O imposed a ban using executive order, then this
America is done. Maybe Alex Jones is on to something?

sandman21
12-22-2012, 7:45 PM
Executive order I believe was added with that god awful Patriot Act. it just allows him to bypass Congress.

It'd be challenged. Heavily. And quickly.

No it was not added with the Patriot act.

dustoff31
12-22-2012, 7:46 PM
Executive order I believe was added with that god awful Patriot Act. it just allows him to bypass Congress.

No, the Patriot Act has nothing whatsoever to do with it.

Even though there is no explicit basis for Executive Orders in the constitution, Presidents have been issuing them since the late 1700's.

Executive Orders direct officials and agencies of the executive branch to take or refrain from taking certain actions in accordance with the laws.

So, a legal EO could not ban guns. It could direct BATFE to find a way to make it as difficult as possible buy or possess certain guns.

huntercf
12-22-2012, 7:58 PM
No, the Patriot Act has nothing whatsoever to do with it.

Even though there is no explicit basis for Executive Orders in the constitution, Presidents have been issuing them since the late 1700's.

Executive Orders direct officials and agencies of the executive branch to take or refrain from taking certain actions in accordance with the laws.

So, a legal EO could not ban guns. It could direct BATFE to find a way to make it as difficult as possible buy or possess certain guns.

I believe this is what B0 was talking about with his so called speech. Just like kamala harris is doing with the DOJ, he will be directing the BATFE to make major changes that will inhibit buying and possessing firearms.

mrdd
12-22-2012, 8:47 PM
Executive order I believe was added with that god awful Patriot Act. it just allows him to bypass Congress.

An executive order is a directive from the President to his administration. It must be lawful, it must conform to federal law, and of course, the constitution.

ETA: To answer the OP, yes it is reviewable by the federal courts.

choprzrul
12-23-2012, 5:51 AM
Excellent info here. Thanks to all who have contributed to my body of knowledge.

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lavey29
12-23-2012, 7:50 AM
O has issued more EO's than any president in history. The first being about one minute after he was sworn in 2008 sealing all his records from review. Hiding his birth and school records. They will try and get this past congress and if that does not work then O will do what he said in his speech and "use every power that this office holds? to change the law and that means he will use EO. It may or may not get over tuned by SCOTUS especially with the U.N. treaty ban on guns. Keep in mind also that O will be appointing 2 justices to the court during his next 4 years which will sway the balance of the court to the libs.

vincewarde
12-23-2012, 5:16 PM
I'm just not so confident SCOTUS will protect ARs and AKs.

A very strong argument can be made that any ban on so called "assault rifles" violates the Constitution as set forth in Miller, Heller and McDonald.

Miller established the fact that a firearm MUST have militia value in order to be protected by the 2nd Amendment. This places our opposition in the uncomfortable position of having to argue that while the firearm must have military value, but somehow it cannot have too much.

Heller established the firearms "in common use" cannot be banned. If handguns - the number one murder weapon in the US - cannot be banned, it is difficult to see how the Justices could logically ban a category of firearm that is also in common use and is used in homicides only a tiny faction of the time.

McDonald, reaffirmed Heller, applied it to the states and elevated the right to a higher level by stating that it was, "fundamental to our system of ordered liberty". It also reaffirmed that government cannot ban entire categories of firearms simply because government believes they are "too dangerous".

Barring the loss of one of the "Heller 5" banning assault rifles will be hard. However, some weapons banned under CA law, such as AR pistols MAY have a harder time, because they are not commonly owned and their military value could be questioned.

swift
12-23-2012, 5:50 PM
Vince, AR pistols are not banned under CA law.

Doheny
12-23-2012, 6:52 PM
O has issued more EO's than any president in history. The first being about one minute after he was sworn in 2008 sealing all his records from review. Hiding his birth and school records. They will try and get this past congress and if that does not work then O will do what he said in his speech and "use every power that this office holds? to change the law and that means he will use EO. It may or may not get over tuned by SCOTUS especially with the U.N. treaty ban on guns. Keep in mind also that O will be appointing 2 justices to the court during his next 4 years which will sway the balance of the court to the libs.

Get your facts straight. Obama has issued the least amount of EOs of all modern Presidents since Teddy Roosevelt and there is no EO sealing his records.

Pretty much nothing else you said is correct either.

Chatterbox
12-23-2012, 7:13 PM
Get your facts straight. Obama has issued the least amount of EOs of all modern Presidents since Teddy Roosevelt and there is no EO sealing his records.

Pretty much nothing else you said is correct either.

They are secret EO orders. You have to have SABLE DIRECT clearance to see them.
:TFH:

huntercf
12-23-2012, 9:53 PM
Vince, AR pistols are not banned under CA law.

They just have to be sold as SSE or build your own from an 80%. CADOJ says they are legal.

mrdd
12-24-2012, 2:02 AM
They just have to be sold as SSE or build your own from an 80%. CADOJ says they are legal.

Even if built from an 80%, you must complete the build in SSE form to conform with the manufacturing provision of the roster laws.

lavey29
12-24-2012, 6:45 AM
Get your facts straight. Obama has issued the least amount of EOs of all modern Presidents since Teddy Roosevelt and there is no EO sealing his records.

Pretty much nothing else you said is correct either.


You need to educate yourself. Review EO 13489 signed by O within minutes after his oath taking. It was pre-printed by his clown posse and they were holding a pen for him as soon as he walked off the podium.

Then educate yourself a little further and see which president has used EO more than any other? Wanna guess? Then after you educate yourself bring something truthful back to the conversation.

choprzrul
12-24-2012, 7:06 AM
This thread is NOT about who has the most EOs or what happened after swearing in.

Topic: Are EOs SCOTUS challengable?

Topic: stay on it...


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Doheny
12-25-2012, 9:56 PM
You need to educate yourself. Review EO 13489 signed by O within minutes after his oath taking. It was pre-printed by his clown posse and they were holding a pen for him as soon as he walked off the podium.

Then educate yourself a little further and see which president has used EO more than any other? Wanna guess? Then after you educate yourself bring something truthful back to the conversation.

Sorry, but if you check the National Archive/Federal Register (http://www.archives.gov/federal-register/executive-orders/disposition.html) you'll see that Obama has actually issued the least number of EOs than any other President of late. Click on the link; it shows the total number of EOs issued by each.

Re: EO 13489, you obviously don't know anything about it. Bush issued a similar one (13233) as did Reagan (12667). Take the time to read Bush's and you'll see the language isn't too different than Obama's

Obama's EO limits the authority of a President to block release of presidential records. It overturned Bush's EO which actually gave Presidents more authority to block records and extended authority to block records to the heirs of Presidents as well as vice presidents concerning their records while in office.

As suggestion, you may want to stop getting your information from chain emails and Infowars. Then after you educate yourself bring something truthful back to the conversation

Doheny
12-25-2012, 10:00 PM
This thread is NOT about who has the most EOs or what happened after swearing in.

Topic: Are EOs SCOTUS challengable?



Yes (http://www.votetocracy.com/blog/detail/understanding-executive-orders-and-the-powers-they-grant).

Executive orders can be overturned by either of the other two branches: the Supreme Court can do so through a case that is brought in front of them and Congress can do so by passing legislation that would conflict with the order or by refusing to approve funding to enforce it. The president still has the right to veto a decision from Congress, which Congress can override as always with a two-thirds majority that would end the executive order. However, this is nearly impossible because of the supermajority vote that is required as well as the fact that individual lawmakers can be left very vulnerable to political criticism. To date, two executive orders have been overturned by other branches. This includes the previously mentioned Truman order as well as a 1996 Clinton order that attempted to prevent the US government from contracting with organizations that had strike-breakers on the payroll. Executive orders can also be overturned by future presidents.

Bobby Hated
12-25-2012, 10:11 PM
what's the point of having a Supreme Court if it cant overturn laws and executive orders?

you know that whole balance of powers and a free society thing...

glockman19
12-26-2012, 7:04 AM
Executive Orders cover Government, Proclamations cover Citizens.

So...When the President, by Presidential Proclamation, made December 14, 2012 "Bill of Rights Day" he proclaimed:

"NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim December 15, 2012, as Bill of Rights Day. I call upon the people of the United States to mark these observances with appropriate ceremonies and activities."

By my understanding and the blessing of the SCOTUS We could have ALL concealed carried without any permit.

For those who want to debate the semantics of a "Proclamation";

"A presidential proclamation "states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)".[11] Presidents “define” situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders—the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government. The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers”. Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance"

So, next time there is a Presidential Proclamation, we should all take advantage of it. It is a legal gift to "Constitutional Carry"

lavey29
12-26-2012, 7:08 AM
Sorry, but if you check the National Archive/Federal Register (http://www.archives.gov/federal-register/executive-orders/disposition.html) you'll see that Obama has actually issued the least number of EOs than any other President of late. Click on the link; it shows the total number of EOs issued by each.

Re: EO 13489, you obviously don't know anything about it. Bush issued a similar one (13233) as did Reagan (12667). Take the time to read Bush's and you'll see the language isn't too different than Obama's

Obama's EO limits the authority of a President to block release of presidential records. It overturned Bush's EO which actually gave Presidents more authority to block records and extended authority to block records to the heirs of Presidents as well as vice presidents concerning their records while in office.

As suggestion, you may want to stop getting your information from chain emails and Infowars. Then after you educate yourself bring something truthful back to the conversation



Oh I am quite knowledgeable and educated (not libtarducated) in this area and firmly believe everything I post. Other presidents have passed similar EO's but not one minute after being sworn into office and not all encompassing as 13489. I know you don't even want to get into a discussion as to why it was imperative for O to seal his records so fast after being sworn into office and using a team of lawyers to keep them sealed prior to being elected. I think you need to turn the blinders off a bit and look a little better at the abuse or EO that has been done by O the past 4 years.

Care to wager if O will use EO if congress cant get anti gun legislation passed? He did it recently with EO for the Dream Act bypassing congress to get the Latino vote.

Yes, it can be over turned by SCROTUS and even a majority vote in congress (subject to veto which is subject to a super vote to over ride it)

fd15k
12-26-2012, 7:32 AM
Oh I am quite knowledgeable and educated (not libtarducated) in this area and firmly believe everything I post. Other presidents have passed similar EO's but not one minute after being sworn into office and not all encompassing as 13489. I know you don't even want to get into a discussion as to why it was imperative for O to seal his records so fast after being sworn into office and using a team of lawyers to keep them sealed prior to being elected. I think you need to turn the blinders off a bit and look a little better at the abuse or EO that has been done by O the past 4 years.

Care to wager if O will use EO if congress cant get anti gun legislation passed? He did it recently with EO for the Dream Act bypassing congress to get the Latino vote.

Yes, it can be over turned by SCROTUS and even a majority vote in congress (subject to veto which is subject to a super vote to over ride it)

So what's your source of information on the number of Executive Orders signed by the current president ?

rplusplus
12-26-2012, 7:51 AM
http://www.archives.gov/federal-register/executive-orders/disposition.html

Source. Time to do a little reading.

fd15k
12-26-2012, 7:55 AM
http://www.archives.gov/federal-register/executive-orders/disposition.html

Source. Time to do a little reading.

That's a given. But I'm wondering what's the source of the previous poster...