Biden: Obama Considering 'Executive Order' to Deal With Guns

[TheWalrus]

I did read it, unlike some posters in this forum, i read my links =) I don't think it's all that unclear that any executive order would fail scrutiny under the second amendments "shall not be infringed" edict. If the POTUS can skirt the explicit direction of the Constitution by EO, then we are going to have REAL trouble on our hands. It would have been like FDR using an EO to expand the Supreme Court to get his guys on it.

Except it's already precedent that the second amendment can be regulated. It's never been interpreted as "anything goes," therefore the only question is how far is too far.

According to the article, the Supreme Court test is this:

1. "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. . .
3. "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the entire matter. . ."
   

The way that reads to me is that if Congress makes a law that gives the president the authority to do something, then he has the ability to issue Executive Orders to enact those responsibilities. That's pretty clear, and logical.

Conversely, if Congress makes a law specifically denying the president some authority -- or if the president does not like the law -- he really has very little ability to issue Executive Orders that run contrary to the law. Also clear, also logical.

Where the gun issue would seem to fall is point #2, the "zone of twilight." Obama could argue that Congress has, through inaction, enabled him to take specific action on guns. Congress can then try to pass a law challenging the president's EO (which I doubt would succeed, given the Democratic control of the Senate). And it could also be challenged in court.

Maybe you're reading it differently but that's how I see it.


EDIT: Roosevelt's attempt to pack the court was a totally different deal. That was a bill in Congress that would have given him the authority to name additional justices which ultimately failed because it wasn't popular (and a few other things). It wasn't an EO.

[Eshlemon]

The problem is where are those cuts going to come from? Everyone talks about these things idealistically, but they never consider how pragmatic it is. Cut social security and medicaid? OK, but then what are we going to do about the thousands of people who lose their housing because medicare/medicaid no longer pays for their nursing homes and other housing? What about the thousands of unemployed that would flood the unemployment office when these government agencies are shut down? It's stuff like this that needs to be considered, but never is...

Put off for tomorrow and hope for the best. As for the decrease in government crashing the economy the correlation is tenuous at best, reductions in the 90's or those over the last 2 years didn't t massive unemployment, but where followed with increase in private sector jobs and economy. And while I stated above about not touching revenue until outlay changes are put in place...if you don't at least decrease outlays to match, don't extend any of the Bush tax cuts.

In the various fix the debt tools we've linked to and participated in, never an option for a reason in our socialist welfare state putting the poor the street and on the fear rhetoric and hyperbole of smaller government in this regards as the"massive" 400 billion in medicare "cuts" over the last couple years show. Except for one part turning medicare prescription into medicaid prescription and just about completing the ACA transformation of medicare into medicaid all are efficiency and technical. When the 12.2% from those working can't match the current across the board payouts to those not working (and while SS and now elderly medicaid won't ever really go bankrupt), the amount paid to SS for everybody will reduced and balanced to how much to cover the old poor. The longer you put off changes such as raising the retirement age to 67 for one and raising the payroll threshold, the bigger the impact later and transformation of elderly universal social security into elderly welfare.

[MoFinz]

Except it's already precedent that the second amendment can be regulated. It's never been interpreted as "anything goes," therefore the only question is how far is too far.

According to the article, the Supreme Court test is this:

1. "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. . .
3. "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the entire matter. . ."
   

The way that reads to me is that if Congress makes a law that gives the president the authority to do something, then he has the ability to issue Executive Orders to enact those responsibilities. That's pretty clear, and logical.

Conversely, if Congress makes a law specifically denying the president some authority -- or if the president does not like the law -- he really has very little ability to issue Executive Orders that run contrary to the law. Also clear, also logical.

Where the gun issue would seem to fall is point #2, the "zone of twilight." Obama could argue that Congress has, through inaction, enabled him to take specific action on guns. Congress can then try to pass a law challenging the president's EO (which I doubt would succeed, given the Democratic control of the Senate). And it could also be challenged in court.

Maybe you're reading it differently but that's how I see it.


EDIT: Roosevelt's attempt to pack the court was a totally different deal. That was a bill in Congress that would have given him the authority to name additional justices which ultimately failed because it wasn't popular (and a few other things). It wasn't an EO.

The way it looks to me, and i could be wrong, is that IF he outlaws a specific weapon, he's going to have to prove it should not be made available to the people that won't infringe on the peoples right to keep and bear arms. I dont see how he can preclude anyone from owning a Bushmaster as long as it's semi-automatic. Maybe he can control the ammo, but what will he do when shell and powder sales skyrocket? Can't really defend controlling all ammo without getting into the 2nd amendment again.

Either way, i think we're about to fall prey to that old Asian proverb. You know the one about the best thing you can wish for you enemy....

May you live in interesting times......

p.s.
I know FDR didn't pass an EO regarding the SCOTUS. I was merely using the analogy to describe how ludicrous it is to try an end around the legislative body to get what you want.

[Locke]

Put off for tomorrow and hope for the best. As for the decrease in government crashing the economy the correlation is tenuous at best, reductions in the 90's or those over the last 2 years didn't t massive unemployment, but where followed with increase in private sector jobs and economy. And while I stated above about not touching revenue until outlay changes are put in place...if you don't at least decrease outlays to match, don't extend any of the Bush tax cuts.

In the various fix the debt tools we've linked to and participated in, never an option for a reason in our socialist welfare state putting the poor the street and on the fear rhetoric and hyperbole of smaller government in this regards as the"massive" 400 billion in medicare "cuts" over the last couple years show. Except for one part turning medicare prescription into medicaid prescription and just about completing the ACA transformation of medicare into medicaid all are efficiency and technical. When the 12.2% from those working can't match the current across the board payouts to those not working (and while SS and now elderly medicaid won't ever really go bankrupt), the amount paid to SS for everybody will reduced and balanced to how much to cover the old poor. The longer you put off changes such as raising the retirement age to 67 for one and raising the payroll threshold, the bigger the impact later and transformation of elderly universal social security into elderly welfare.

Well, obviously things like raising the retirement age and things like that are different than just straight slashing. I didn't mean to make it sound like I was stating the U.S. would collapse if that would happen. I'm simply addressing the posters who state things like slash food stamp benefits, etc. without addressing consequences. Obviously, there is room for cuts everywhere. In fact, there is a hell of a lot of room for cuts in defense. Having actual tangible ideas for cuts is a different beast then just saying "cut entitlements". My stance is if there are going to be cuts, they need to start where most of our money is being spent: defense. If that isn't enough, then we start moving to less-needed entitlements. If that's still not enough, keep going. But going straight to medicare/medicaid and bypassing defense is simply stupid, in my opinion. Of course, I could be biased due to me job. I consult with a company contracted by the state of NM to oversee the self-directed Medicaid waiver here. I spend a lot of time doing assessments and working face-to-face with families here whose entire lives rely on their medicaid. Even the smallest decrease in their funding would be disastrous for a large chunk of the people I work with. Defense cuts HAVE to come first...

[Eshlemon]

Well, obviously things like raising the retirement age and things like that are different than just straight slashing. I didn't mean to make it sound like I was stating the U.S. would collapse if that would happen. I'm simply addressing the posters who state things like slash food stamp benefits, etc. without addressing consequences. Obviously, there is room for cuts everywhere. In fact, there is a hell of a lot of room for cuts in defense. Having actual tangible ideas for cuts is a different beast then just saying "cut entitlements". My stance is if there are going to be cuts, they need to start where most of our money is being spent: defense. If that isn't enough, then we start moving to less-needed entitlements. If that's still not enough, keep going. But going straight to medicare/medicaid and bypassing defense is simply stupid, in my opinion. Of course, I could be biased due to me job. I consult with a company contracted by the state of NM to oversee the self-directed Medicaid waiver here. I spend a lot of time doing assessments and working face-to-face with families here whose entire lives rely on their medicaid. Even the smallest decrease in their funding would be disastrous for a large chunk of the people I work with. Defense cuts HAVE to come first...

Defense is 3rd in outlays behind SS & Medicaid/medicare entitlements. Other mandatory entitlements is 4th at a 450 billion which both parties have increased and implemented program expansions, as in your food stamp example shows with both the 2003 & 2006 Farm Bills. And all these entitlements are an even bigger "third rail" than defense. Won't argue about defense and these cuts have been pleasantly surprising, with the 2011 cuts and if sequestration cuts are carried out we'll have reduced this from 7 trillion over the next 10 years to 6 trillion along with sequestration non-military discretion of about 7 trillion to 6.3 trillion. Which is big but still has room more...but then I'm a small government than most except probably DS99. While the only thing done regarding the 26 trillion on entitlements over the next 10 years is removing a couple hundred billion in payroll revenue over the last 2 years.

[TheWalrus]

The way it looks to me, and i could be wrong, is that IF he outlaws a specific weapon, he's going to have to prove it should not be made available to the people that won't infringe on the peoples right to keep and bear arms. I dont see how he can preclude anyone from owning a Bushmaster as long as it's semi-automatic. Maybe he can control the ammo, but what will he do when shell and powder sales skyrocket? Can't really defend controlling all ammo without getting into the 2nd amendment again.

Either way, i think we're about to fall prey to that old Asian proverb. You know the one about the best thing you can wish for you enemy....

May you live in interesting times......

p.s.
I know FDR didn't pass an EO regarding the SCOTUS. I was merely using the analogy to describe how ludicrous it is to try an end around the legislative body to get what you want.

Congress has outlawed certain weapons plenty of times. Like I said, the 2nd amendment has never been interpreted as all or nothing. Semi-automatic is just a line that's been drawn. It can be redrawn.

If you know of a specific Supreme Court case where they outline in detail what counts as "arms" please post it, but as far as I know that's always been a vague term even among textualists (who care what the law meant at the time). Living constitutionalists are not obliged to particularly care what "arms" meant to the founders, but even in a modern context it's kind of vague, no doubt because of that term's relationship to the 2nd amendment.

[SkapePhin]

**** executive orders. King or President?

Conservatives and Liberals both share blame for the current political climate and state of affairs where executive orders aren't universally derided for instances such as this. W. set the precedent, and now the ball is rolling.

[Eshlemon]

Proposals expected from Obama to curb gun violence
By By The Associated Press

Obama's proposals also are expected to include recommendations to address violence in entertainment and video games.

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Going back to Larry Flynt and obscenity, hasn't Hollywood and the entertainment industry continually beat down government first amend infringements?

[Locke]

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Way to go Obama. Let's just ignore countless studies that show very little influence from movies and video games in that regard. Guess we have to do something just to do something, nevermind actually addressing the problem. ****ing stupid...

[TheWalrus]

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Way to go Obama. Let's just ignore countless studies that show very little influence from movies and video games in that regard. Guess we have to do something just to do something, nevermind actually addressing the problem. ****ing stupid...

Agreed. No reason to go right up to the line of merely the 2nd amendment when you can propose throwing away the 1st amendment in the bargain. We'll have to wait and see what "recommendations" means but even the suggestions presupposes a link that doesn't exist.