January 7, 2016: Executive Orders


Though not an expressed provision or statute, executive orders have been justified through constitutional reasoning of the “take Care” clause (Article II Section 3, clause 5) AKA Faithful Execution Clause or Faithfully Executed Clause. Whenever reasoning is involved there will be difference of opinion on what is reasonable. 

Executive Orders are subject to judicial review based on conforming to the Constitution and the legal effect of the order. If not overturned by judicial review, executive orders have the full force of law. This is the most narrow path of any idea to become law in our country.  It only requires the President and five Supreme Court Justices.  The Legislative Branch can be bypassed completely.

The scope of executive orders (EO) has ranged from lowering flags to half-staff to requiring all mined gold in the United States be delivered to the Treasury (Franklin Roosevelt). In general terms, executive orders do not create new law, but rather clarify or redirect the purpose of existing law.  Until the early 1900 most executive orders were simply presidential directions to departments within the executive branch. President Lincoln’s Emancipation Proclamation was an executive order that changed the status of more than 3 million and was directed to all segments of the executive branch. 

They have also been used to expand the Executive branch by creating new agencies which in turn create regulations that have the force of law. The Environmental Protection Agency was created by President Nixon’s executive order, but was also ratified by committee hearings in the House and Senate. 

Compiled charts of the number of executive orders only show William Henry Harrison as having not issued an executive order. But recall that he had the shortest term as President because he died in office of pneumonia attributed to his activities on his inaugural day.  President Franklin D. Roosevelt has issued the most at 3,522 (he served for 12 years).

On to current events. The online Federal Registry does not yet have the text of the latest executive order as outlined in the FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer.  The FACT SHEET that can be found on whitehouse.gov.  My observations are based on the FACT SHEETS available from January 4 and January 5, 2016.  Reading the FACT SHEET reminds me of George Orwell’s classic science-fiction book titled 1984.  The premise and expected actions don’t relate to each other, classic doublespeak. 

I believe this is intentional because the objective of the President has been to fundamentally transform American and in the gun rights arena, he likes Great Britain and Australia as examples. Keeping guns out of the wrong hands through background checks. The first point concerns the sale of firearms.  The proposal looks to eliminate “private” gun sales which in media speak is the “gun show loophole”. 

Eliminating private transactions among Citizens is the goal.  The impact is to open every “private” transaction to prosecutorial discretion.  Without stated limits or a definition of “in the business”, anyone who sells a gun could potentially be prosecuted.  Value, profit, and compensation are subjective. The seller and a prosecutor are likely not to agree.  But the seller will have to defend themselves against up to five years in prison and fines up to $250,000. 

These undefined laws do not contribute to a nation of laws because we will not have equal protection under the law. The laws are not specific enough to be applied equally.  As stated in the FACT SHEET;

“Quantity and frequency of sales are relevant indicators. There is no specific threshold number of firearms purchased or sold that triggers the licensure requirement. But it is important to note that even a few transactions, when combined with other evidence, can be sufficient to establish that a person is “engaged in the business.” For example, courts have upheld convictions for dealing without a license when as few as two firearms were sold or when only one or two transactions took place, when other factors also were present.”

How does that make you feel? Probably make you reconsider selling a gun to an acquaintance.  What “other factors” are present in your life that a prosecutor will use against YOU?

Most of the rest of the EO is padding for delivery of the change that carries the legal effect.

It’s an election year. Choose wisely!


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