For more:
- Obama to impose new gun control curbs next week.
- Obama weighs expanding background checks through executive authority.
- Here Are The 23 Executive Orders On Gun Safety Signed Today By The President.
For 2305 students - executive orders are one of the extra constitutional checks one branch uses to limit the powers of the others. Judicial review is another. Both are likely to appear in the final. Since executive orders allow the president to set policy - which is generally considered a legislative power - questions are habitually raised about whether the measures imposed by executive orders are constitutional, or whether they violate the principle of separated powers by allowing the executive to infringe on the legislature.
A member of George W. Bush's White House Staff weighs in on this question. He give no clear answer about the legality of these actions, but suggests that these issues are best tackled in the political process, one that involves Congress. The rebuttal would likely be that Congress refuses to act, so if anything is to be done, it has to be done by the executive.
Regardless, this a good description of the issue associated with this power, and what it takes to determine if executive actions are too excessive.
- Click here for the article.
Executive orders are not constitutionally sanctioned or prohibited, but once signed, they have the force of law. Presidents have utilized them to drive policy within the executive branch since the dawn of the republic. In some cases, presidents have acted quite aggressively through executive orders. President Lincoln suspended the writ of habeas corpus during the Civil War; President Roosevelt established internment camps during World War II; and President Truman mandated equal treatment of all members of the armed forces — all through executive orders. Significantly, all three of these actions were rooted in the president’s constitutional authority as commander-in-chief of the armed forces, in the midst of national emergencies.
Presidents acting by executive order have been challenged in court, most notably in Youngstown Sheet & Tube Co. v. Sawyer (1952). In Youngstown Sheet & Tube, the Court held that President Truman had exceeded his authority by directing the seizure of steel mills to avert a strike during the Korean War, stating that “the president’s power to see that laws are faithfully executed refutes the idea that he is to be a lawmaker.” Thus, the majority found that Truman had strayed too far into the province of the legislature, violating the separation-of-powers doctrine.
But it was Justice Robert Jackson’s concurrence that established the three-part framework for considering executive authority going forward. First, there are the areas of express or implied constitutional or statutory presidential authority, where the president’s authority for executive action is at its height. Second, there are areas where Congress has not legislated, and where the line of authority between the president and the Congress is vague or overlapping. Finally, there are areas where presidential action is “incompatible with the express or implied will of Congress,” where the president’s authority is at its lowest.
The analytical framework for executive action established by Justice Jackson thus provides a basis to consider how executive action by President Obama to restrict guns would fare in a legal challenge.
