Executive Order
- Thread starter jorb
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No! Despite all of Podesta's cute comments about stroke of the pen, law of the land, executive orders are really just directives given to the agencies controlled by the executive branch on how they are to do their jobs. In cases like paying for stem cell research and closing most of Utah to oil exploration (the two executive orders recently mentioned) all they do is instruct whatever executive branch agencies that disburse money for research to allow federal funds to be spent on embryonic stem cell research and the Department of the Interior not to issue permits for oil exploration in Utah.
He couldn't order the end of CCW because there is no federal CCW and it's not overseen by any federal agencies under the control of the executive branch. He also couldn't order the BATFE to enforce the old AWB because the law giving them that authority expired in 2004.
He couldn't order the end of CCW because there is no federal CCW and it's not overseen by any federal agencies under the control of the executive branch. He also couldn't order the BATFE to enforce the old AWB because the law giving them that authority expired in 2004.
CoRoMo
Member
Hey... that's my signature!
Also - it's worth noting that executive orders CANNOT create law. Laws must be created by the legislative branch of government. That means no executive orders banning the sale of certain weapons. That would in effect be a new law - and would not be allowed. Executive order cannot repeal laws either.
Executive orders are simply a clarification as to the way policy or legislation is to be enacted and carried out. The order it's self must exist within the spirit and definition of the law.
Executive orders are simply a clarification as to the way policy or legislation is to be enacted and carried out. The order it's self must exist within the spirit and definition of the law.
Seenterman
Member
- Joined
- May 9, 2008
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- 192
So would the 500% tax increase also NOT be able to be implimented through an Executive Order?
Or does that fall under IRS jurisdiction or something?
Thats the big one im worrying about.
Or does that fall under IRS jurisdiction or something?
Thats the big one im worrying about.
SoCalShooter
Member
I am hard pressed to see how he could possibly put a 500% increase and specifically single out and persecute one industry completely because that will definitely hurt the military and LE and other agencies that need guns and ammo and gear.
That one's iffy.
It depends on a few things - mainly the current wording of any legislation that imposes a federal tax on Ammo. If the law is written such that the level of tax is left to the discretion of a governing body - and allows for that governing body to adjust the tax rate without approval - then yes, he could.
For the most part, when taxes are levied on products like that - it's done so in a very very specific and clearly defined fashion. The exact rate, the exact definition of products that are effected, the time limits, sunset clauses, etc etc are all written to be bullet proof. Not by chance - to prevent a situation exactly as you described. I would be very surprised if the laws were written in a way that would allow that.
Ala Dan
Member in memoriam
I have a valid "Handgun License", for in Sweet
Home Alabama we don't refer to them as "permits"~!
Home Alabama we don't refer to them as "permits"~!
An EO instructing the IRS/Treasury Dept to raise taxes on ammunition COULD fly initially as there is already existing legislation around said taxation in place.
However, it would kick off a really ugly fight not just from the pro-firearms side but also the House as tax legislation is their bailiwick not the Executive.
I imagine the SAF/NRA would also try and get a suit rolling with the intent of getting that on the SC's calendar ASAP via a lawsuit based on punitive taxation around a Constitutional right.
This could also have a nasty (for the Executive) side effect of limiting just what the President can do via an EO.
All downside, no upside
However, it would kick off a really ugly fight not just from the pro-firearms side but also the House as tax legislation is their bailiwick not the Executive.
I imagine the SAF/NRA would also try and get a suit rolling with the intent of getting that on the SC's calendar ASAP via a lawsuit based on punitive taxation around a Constitutional right.
This could also have a nasty (for the Executive) side effect of limiting just what the President can do via an EO.
All downside, no upside
damien
Member
The Federal Excise Tax on guns and ammo is codified in 26 U.S.C. 4181 and 4182. The percentage is set in stone (it's 10% or 11%).
http://caselaw.lp.findlaw.com/casec...apters/d/parts/iii/sections/section_4181.html
http://caselaw.lp.findlaw.com/casec...apters/d/parts/iii/sections/section_4182.html
Section 4181
There is hereby imposed upon the sale by the manufacturer,
producer, or importer of the following articles a tax equivalent to
the specified percent of the price for which so sold:
Articles taxable at 10 percent -
Pistols.
Revolvers.
Articles taxable at 11 percent -
Firearms (other than pistols and revolvers).
Shells, and cartridges.
Section 4182
(a) Machine guns and short barrelled firearms
The tax imposed by section 4181 shall not apply to any firearm on
which the tax provided by section 5811 has been paid.
(b) Sales to defense department
No firearms, pistols, revolvers, shells, and cartridges purchased
with funds appropriated for the military department shall be
subject to any tax imposed on the sale or transfer of such
articles.
(c) Records
Notwithstanding the provisions of sections 922(b)(5) and 923(g)
of title 18, United States Code, no person holding a Federal
license under chapter 44 of title 18, United States Code, shall be
required to record the name, address, or other information about
the purchaser of shotgun ammunition, ammunition suitable for use
only in rifles generally available in commerce, or component parts
for the aforesaid types of ammunition.
Congress made it, only Congress can change it. The law gives the president precisely 0% discretion on this.
http://caselaw.lp.findlaw.com/casec...apters/d/parts/iii/sections/section_4181.html
http://caselaw.lp.findlaw.com/casec...apters/d/parts/iii/sections/section_4182.html
Section 4181
There is hereby imposed upon the sale by the manufacturer,
producer, or importer of the following articles a tax equivalent to
the specified percent of the price for which so sold:
Articles taxable at 10 percent -
Pistols.
Revolvers.
Articles taxable at 11 percent -
Firearms (other than pistols and revolvers).
Shells, and cartridges.
Section 4182
(a) Machine guns and short barrelled firearms
The tax imposed by section 4181 shall not apply to any firearm on
which the tax provided by section 5811 has been paid.
(b) Sales to defense department
No firearms, pistols, revolvers, shells, and cartridges purchased
with funds appropriated for the military department shall be
subject to any tax imposed on the sale or transfer of such
articles.
(c) Records
Notwithstanding the provisions of sections 922(b)(5) and 923(g)
of title 18, United States Code, no person holding a Federal
license under chapter 44 of title 18, United States Code, shall be
required to record the name, address, or other information about
the purchaser of shotgun ammunition, ammunition suitable for use
only in rifles generally available in commerce, or component parts
for the aforesaid types of ammunition.
Congress made it, only Congress can change it. The law gives the president precisely 0% discretion on this.
The tricky part about it - is the current administration has taken a pretty wide interpretation of executive orders and signing statements. There is an argument that could be made for precedent. It would be a rough position to defend, and ultimately would not be worth the fight. Like you said,, all downside, no upside.
Also as you said - the house is pretty protective of their little kingdom. As such - they tend to write policies that can not easily be modified by executive order, least of all tax policy.
damien
Member
As wide as the Bush administration has interpreted EOs, they have never said that the president can change a tax rate that Congress has set as a matter of law. Remember Bush having to work with Congress on the income tax rates? He had to, he has no discretion to set tax rates unless Congress has delegated them, and they have never delegated the ability for the President to set income tax rates or the FET on guns and ammo either. Obama won't even try this. If he did, administration would lose in every federal court they hit until the eventual 9-0 loss in the Supreme Court. Tax rates not delegated to the President cannot be set by the president, period.
He has to go to Congress on this one.
The answer to this question is fairly simple. He has no legal authority to do so.
In practice, its unlikely he would make such a bold step, but he might take some baby steps.
For instance, he could possibly by executive order declare all federal property to be a gun free zone. Or he might order the BATFE to inspect/harass all gun dealers weekly. Would make it very hard to sell guns.
We could spend a lot of time and money fighting such orders that would better be spent elsewhere.
You have to remember two things about Obama. One is that he is a committed radical socialist. Second, that he is a Chicago style thug politician. The only thing that will restrain him is what he thinks he can get away with. We will have to be extra vigilant the next four years.
One might think that at least some Democrats would take umbrage at any serious failure to respect the rule of law, but you just never really know. Most have gone along quite meekly with the many grossly unconstitutional behaviors of the federal government. I suspect most would quite happily accept just about any abomination he might put forth in exchange for say "free" healthcare.
Lone_Gunman
Member
There are certain firearms that the president can ban importation of by executive order. He could direct the BATF to change its definition of what constitutes a sporting firearm, for example. He could do this is in such a way as to forbid importation of semiautos like SKS and AK rifles.
ServiceSoon
Member
I heard Bill Clintion created an EO banning the importation of certain firearms. Based on what I am hearing here how can that happen? EO's can't be legally used to create law, they can only be used to give directives to federal agencies and only if congress has given that agency the power the EO ask the federal agency to exercise.
What is important is to start contacting your representatives about how they would vote on such measures.
salthouse
Member
I may be wrong, but I think an EO could be used like this- "Block distribution of federal highway money to states that allow ccw." Which clearly allows the states to have CCW, but the price is too high for any of them to do it. (extortion)
I'm not certain this is an option, but I think it might be.
I'm not certain this is an option, but I think it might be.
The Feds could not do that with an EO. But they could pass such a law, and have in the case of 21 yr old drinking age and 55MPH in the past.
But legal CCW holders constitute about 3% of the voters in any state with it. That's 3% very committed potentially angry tax paying voters.
And if they did, how many people would stop carrying? For a while I was between permits (they had my application but were slow to process it and the old one expired). I didnt care, I carried anyway. I have been asked for mine zero times in 9 years.
But legal CCW holders constitute about 3% of the voters in any state with it. That's 3% very committed potentially angry tax paying voters.
And if they did, how many people would stop carrying? For a while I was between permits (they had my application but were slow to process it and the old one expired). I didnt care, I carried anyway. I have been asked for mine zero times in 9 years.
Lone_Gunman
Member
The laws that allow the ATF to regulate firearm importation are already written, and some discretion is given to the ATF to determine what firearms can and cannot be imported. The "sporting purposes" interpretation is part of what lets the ATF do this.
It is up to the president to set the guidelines the ATF uses. I believe, for example, that it would be legal for a president to ban importation of all semi autos, or any other particular weapon class, if he so chose. This could legally be done as I understand it using the Executive Order. The laws that allow the ATF to regulate importation are already written, and the chief executive has latitude in determining how to best enforce the law.. If I am wrong, I hope someone will enlighten me.
Do not delude yourself.
In "emergency" situations, which are deemed as such at the whim of the executive, FEMA runs the show. BATFE or any other "federal administrative agency" can and will be ordered to follow the EO; and they may or may not contract with private firms (Blackwater anyone?).
Surprisingly, the bankers and their low-level minions (Paulson, Bernanke et al) are getting away with it so it just might not be necessary to confiscate. Why cause a stir if noone is willing to use what they have? I bet they were looking over their shoulders when they put the key in their locks at home the first few days of the financial realignment ...
Baaaaaa
In "emergency" situations, which are deemed as such at the whim of the executive, FEMA runs the show. BATFE or any other "federal administrative agency" can and will be ordered to follow the EO; and they may or may not contract with private firms (Blackwater anyone?).
Surprisingly, the bankers and their low-level minions (Paulson, Bernanke et al) are getting away with it so it just might not be necessary to confiscate. Why cause a stir if noone is willing to use what they have? I bet they were looking over their shoulders when they put the key in their locks at home the first few days of the financial realignment ...
Baaaaaa
WardenWolf
member
An executive order MIGHT be able to order the ATF to enforce their existing directives in a particular way, though. Such as ordering them to patrol ranges and seize any firearms that are not 922(r) compliant, for example. Or ordering them to interpret their rules in a particular way. Or maybe reclassifying a certain type of firearm to a category that requires registration.
Mike U.
Member
Thank you, Jeff White, for clarifying the scope of an EO. I've read somewhere that an EO could do just that.
I can sleep a little easier tonight.
Now, I have an ignorance question.
Didn't the Heller Decision effectively negate any need for a firearm to have a "sporting purpose"?
The 2nd Amendment isn't there just for hunters, after all.
I can sleep a little easier tonight.
Now, I have an ignorance question.
Didn't the Heller Decision effectively negate any need for a firearm to have a "sporting purpose"?
The 2nd Amendment isn't there just for hunters, after all.
Mike,
In one word NO, explanation below.....
A number of folks have at best skimmed the Heller decision, cherry picked the sections that support their wishes, hopes, desires and/or prejudices and skipped over the rest.......
All of the amendments of the Bill of Rights have some legislative hedging and cannot be taken as absolute and unfettered. Freedom of speech and the yelling of "fire" in a crowded theatre is the one brought up but fails to explain fully.
You will always have the ability and right to yell "Fire" (freedom of speech)but will have to bear the legislative, legal and civil consequences IN CONTEXT. If there is actually a fire then no issues you are being a good citizen, if there isn't and due to your actions, there is inconvenience, injury or other losses then you bear the consequences of your actions.
Ditto if there was no fire but you are aware that there is a suicide bomber about to enter the building and this is the only way to save lives. Situation, context, actions, results, consequences.
Now with the Heller case the decision was about a very specific and tailored issue, purely about an outright ban of new, the registration and restrictions of "grandfathered", of a single class of firearm, in DC and the associated storage laws.
It was further complicated with DC's status as a federal enclave with limited self rule.
The SC, in general, when they make any ruling typically keep it very narrow, very specific and only in context of the original suit and it's impact on constitutional law.
Because this was the first real attempt to take a stab at 2A since before Miller , the SC actually went further than strictly necessary to lay a framework for further activity around 2A.
When an SC justice says words like
The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms.
It does NOT mean the SC are fully supporting and casting in stone these prohibitions, it means they are not ruling on it as it was not in the remit of the original suit.
As it was the SC went further than strictly required to answer the suit as they specifically stated that 2A is an individual right and completely divorced the militia and comma nonsense from 2A. This was not necessary for the ruling but was a bonus.
Now, the SC has stated categorically that 2A is an individual right and has the same duties and prerogatives and limitations as the rest of the Bill of Rights. However it did not lay out, AS IT WAS NOT PART OF THE ORIGINAL CASE, levels of scrutiny as it did not and could not say the 2A was incorporated at this point.
It is inherently implied by the rulings but not defined as the case was not a states right issues but a "Federal enclave" due to Washington's peculiar status. It was an example of strict ruling by the SC about DC, not states, to be decided later as incorporation of 2A was not part of the original suit.
This issue will have to be answered via the Chicago or Califonia (Nordyke) suits and will first cast 2A as incorporated and then lay the groundwork on scrutiny. It will then be extraordinarily difficult for the SC to lay down any level of scrutiny that is less than that applied to the other BoR amendments. This is going to be a nasty little grenade to defuse and they passed on bundling this as part of Heller.
IMHO this was weasel wording to make sure that Kennedy stayed on board
In one word NO, explanation below.....
A number of folks have at best skimmed the Heller decision, cherry picked the sections that support their wishes, hopes, desires and/or prejudices and skipped over the rest.......
All of the amendments of the Bill of Rights have some legislative hedging and cannot be taken as absolute and unfettered. Freedom of speech and the yelling of "fire" in a crowded theatre is the one brought up but fails to explain fully.
You will always have the ability and right to yell "Fire" (freedom of speech)but will have to bear the legislative, legal and civil consequences IN CONTEXT. If there is actually a fire then no issues you are being a good citizen, if there isn't and due to your actions, there is inconvenience, injury or other losses then you bear the consequences of your actions.
Ditto if there was no fire but you are aware that there is a suicide bomber about to enter the building and this is the only way to save lives. Situation, context, actions, results, consequences.
Now with the Heller case the decision was about a very specific and tailored issue, purely about an outright ban of new, the registration and restrictions of "grandfathered", of a single class of firearm, in DC and the associated storage laws.
It was further complicated with DC's status as a federal enclave with limited self rule.
The SC, in general, when they make any ruling typically keep it very narrow, very specific and only in context of the original suit and it's impact on constitutional law.
Because this was the first real attempt to take a stab at 2A since before Miller , the SC actually went further than strictly necessary to lay a framework for further activity around 2A.
When an SC justice says words like
The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms.
It does NOT mean the SC are fully supporting and casting in stone these prohibitions, it means they are not ruling on it as it was not in the remit of the original suit.
As it was the SC went further than strictly required to answer the suit as they specifically stated that 2A is an individual right and completely divorced the militia and comma nonsense from 2A. This was not necessary for the ruling but was a bonus.
Now, the SC has stated categorically that 2A is an individual right and has the same duties and prerogatives and limitations as the rest of the Bill of Rights. However it did not lay out, AS IT WAS NOT PART OF THE ORIGINAL CASE, levels of scrutiny as it did not and could not say the 2A was incorporated at this point.
It is inherently implied by the rulings but not defined as the case was not a states right issues but a "Federal enclave" due to Washington's peculiar status. It was an example of strict ruling by the SC about DC, not states, to be decided later as incorporation of 2A was not part of the original suit.
This issue will have to be answered via the Chicago or Califonia (Nordyke) suits and will first cast 2A as incorporated and then lay the groundwork on scrutiny. It will then be extraordinarily difficult for the SC to lay down any level of scrutiny that is less than that applied to the other BoR amendments. This is going to be a nasty little grenade to defuse and they passed on bundling this as part of Heller.
IMHO this was weasel wording to make sure that Kennedy stayed on board
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