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U.S President Biden has been in the news, such as this article in Forth Worth Star-Telegram, appealing for tougher gun laws. The article says that

He repeated calls to restore a ban on the sale of assault-style weapons and high-capacity magazines — and said if Congress won't embrace all of his proposals, it must at least find compromises like keeping firearms from those with mental health issues or raising the age to buy assault-style weapons from 18 to 21.

Yet in other news we hear that he has signed an executive order legislating something or other (the executive orders signed by President Biden can be found here in the Federal Register).

This article at the National Constitution Center says that

An executive order is a directive from the President that has much of the same power as a federal law.

Question: So instead of begging for support for his wishes on gun control, why can he not simply legislate that through executive order?

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    Because using EOs to breach the constitution would be an impeachable offence.
    – Valorum
    Commented Jun 4, 2022 at 23:14
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    If I weren't already somewhat familiar with the U.S. Constitution, I would have found the linked article from the National Constitution Center confusing. IMHO, it does not explain Executive Orders well. Commented Jun 4, 2022 at 23:46
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    Because the U.S. President has no legislative power. Issuing executive orders is not a legislative activity: it does not create, amend, or repeal any law, and executive orders do not supersede any applicable law. This is in the "the President is not a monarch" category. Commented Jun 5, 2022 at 14:46
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    @Valorum that is incorrect. First, issuing an unconstitutional order is not necessarily impeachable. Second, whether it's impeachable is irrelevant; it would certainly not lead to impeachment. The real reason presidents don't issue unconstitutional executive orders is because they know that the order would not be enforceable. But there's also a reason why they do issue unconstitutional orders. In fact there are several: they believe the order to be constitutional, or they want to make a political point, or they hope that a challenge will land before a sympathetic judge, etc., etc.
    – phoog
    Commented Jun 5, 2022 at 20:46
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    @RobbieGoodwin Things can be valid on more than one stack. It’s on politics because it’s asking why the President does not do something (due to misunderstanding the nature of Executive Orders). Commented Jun 6, 2022 at 13:01

3 Answers 3

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For one, executive orders only govern the actions of the the Executive Branch. The president cannot commandeer state governments, nor can he order private citizens to do, or not do, anything.

Second, Article II, Section 3 of the Constitution requires the President to “take Care that the Laws be faithfully executed.” Even the Executive Branch is fairly tightly constrained in what it can do by laws passed by Congress and signed by the president or one of his predecessors.

So the president cannot simply order that such-and-such a firearm not be sold, or that someone who does so should be penalized. This country does not work that way.

For example, the president could, if he chose, pause gun control to an extent, by ordering the Justice Department and its Bureau of Alcohol, Tobacco, Firearms and Explosives to “deprioritize” enforcement of existing gun-control laws. That would work except that:

  1. any state or local gun control would still be in effect.
  2. if any US Attorney “went rogue“ and decided to enforce a deprioritized law, the defendant would not be able to argue in court that the law was not supposed to be enforced — and the Attorney General might fire or reassign the USAA in question but there would be no other penalty.
  3. the president’s successor could issue a countervailing executive order.

The president could even order the Justice Department to spend more effort on gun control and to seek more severe punishments, but that does not change the law, and more important, it does not affect the behavior of state-level law enforcement, which outnumbers their Federal counterparts by 20 to one.

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    And he can't contravene federal laws. If the law says it's legal to sell and own AR-15-style rifles, he can't tell the Justice Department to arrest people with these guns.
    – Barmar
    Commented Jun 4, 2022 at 16:29
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    Curious about terminology: are US executive orders roughly equivalent to decree s in other countries? Not asking about rule by decree cases, just regular old "decree". +1, but your last point might need more emphasis: even on domains that are mostly under the purview of the Federal authorities, rather than reliant on local enforcement, an executive order can be trivially withdrawn by next POTUS. Ex: The Trump Administration Rolled Back More Than 100 Environmental Rules Commented Jun 4, 2022 at 18:50
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    @ItalianPhilosophers4Monica I can't speak to other countries but probably, Executive Orders are overwhelmingly documents either directing federal agencies on how to implement a law/policy, or giving more general statements on what the policy of the administration is going to be regarding implementation of a law/policy. A hopefully non-contentious example would be HSPD-12, which directed DHS to work with other agencies to standardize Federal identification cards. Commented Jun 5, 2022 at 14:19
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    @ItalianPhilosophers4Monica: Executive Orders are actually pretty much what it says on the tin: it is the Head of the Executive Branch of the Federal Government ordering his subordinates to do (or in some cases) not do some specific things under some specific circumstances, or ordering them how to do some specific things under some specific circumstances. The Wikipedia article on Decree actually uses Executive Orders as an example of a decree and states that they are decrees. Commented Jun 5, 2022 at 17:51
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    In the US executive agencies have very wide latitude in interpreting laws, in large part thanks to an executive law principal known as 'Chevron Deference' which explicitly leaves the interpretation of congressional acts and laws in the hands of the Executive (law.cornell.edu/wex/chevron_deference). We now have a majority of supreme court justices that are vehemently opposed to Chevron Deference, which might fundamentally change the power of executive orders when it will be overturned since those powers will move to the judicial branch.
    – Chuu
    Commented Jun 6, 2022 at 14:29
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The National Firearms Act of 1934 instructs the Secretary of the Treasury to identify which firearms with a bore diameter of greater than 0.5" are particularly suitable for hunting or sporting purposes, and exempt such firearms from classification as Destructive Devices requiring payment of a $200 tax; a President could (and in fact President Clinton did) direct the Secretary to find that certain 12 gauge shotguns (which have a bore diameter of over 0.7", but are generally one of the most common kinds of hunting and sporting firearms) were not particularly suitable for hunting purposes, and should thus be classified as Destructive Devices, but Clinton only had the authority to do that because the National Firearms Act of 1934 explicitly tasked the Secretary of the Treasury, who is a member of the executive, with making such determinations.

Aside from a few issues like that where statute explicitly gives an executive agency rule-making authorty, however, the President would have no authority, with or without the Second Amendment, to impose his own judgments over what the laws should be. Executive orders have no authority beyond those explicitly provided for by Congress.

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    The last sentence is the key here. EOs can only do what an actual law passed by Congress (or the Constitution) says they can do. Nothing more. Any EO that exceeds authorization in federal law is illegal. With that being said, there are some extremely broad federal laws out there that grant rather wide powers to the executive on certain matters.
    – reirab
    Commented Jun 6, 2022 at 5:53
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One of the comments ask if Executive Orders are decrees, and they are, but not like the decrees of ruling kings or even everyday judges. Executive Orders are basically Letters from CEO to Employees (such as Gates letter on trustworthy computing), and the only people legally required to do anything about them are government employees, and even that comes with a bunch of caveats.

So, while he can change how current policies are interpreted and implemented by an EO, he can’t change the law. He can say that fighting crime X is a higher priority than Y, but he can’t say that Y is legal. He can even say that Y is NOT to be prosecuted as it’s a waste of resources better spent on prosecuting X. But that doesn’t make it legal, and if someone were to prosecuted despite his EO, they could still end up in jail and bringing up the EO would not be a get out of jail free card.

He can’t make something illegal that is currently legal, he can’t say that possession of a firearm with a barrel length over 3 inches or with a name that starts with an A is a crime punishable by 6 minutes in jail. He can give guidelines on what kind of sentencing recommendation and decisions to make, but he can’t enforce it, except by firing people where he is legally allowed to do that. He can’t say go arrest people for Not A Crime.

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