Presidential Gun Ban: Executive Power or Unconstitutional Power Grab?

by: Congressman Paul Gosar

Over the last few years there has been a growing concern about the President's questionable expansion of executive powers. As a nation of laws, public officials are sworn to uphold the law . . . even laws you may not like. The way to deal with laws you do not like is to get Congress or whatever body passed it to change it. Real simple.

President Obama has, by executive order, circumvented national immigration law by ordering a halt to deportations of certain unlawful aliens, without getting the law changed. In July of 2012, President Obama changed long standing welfare policy to allow states to change mandated work requirements. Earlier he ordered the DOJ not to enforce the Defense of Marriage Act. None of these orders were submitted to Congress for review, which the Government Accountability Office concluded he should have done in part. I have co-sponsored bills to reverse these unconstitutional power grabs and will continue to fight them.

The President, touted by some as knowledgeable about our Constitution, acts as if he never heard of it sometimes. Now, the President and Vice-President are talking about enacting gun bans by executive order.

“The president is going go act,” Biden is quoted as saying. “There are executive orders, executive action that can be taken. We haven’t decided what that is yet, but we’re compiling it all.”

For the moment put aside the fact that the Second Amendment protects the right of each person to own and posses firearms and the ammunition that goes with it. Our Supreme Court resolved that issue in Heller. Obviously neither the President nor Congress can enact laws that violate the Second Amendment, anymore than they can enact laws that violate the First Amendment or the Fifth Amendment. Let's focus on the supposed authority of the President to simply enact laws by the stroke of his pen. Article I Section I of the Constitution vests all legislative powers in Congress. All. None are given to the President or the Courts. All government acts need to be evaluated on whether they are consistent with our Constitution.

The executive branch has the Constitutional responsibility to execute the laws passed by Congress. It is well accepted that an executive order is not legislation nor can it be. An executive order is a directive that implements laws passed by Congress. The Constitution provides that the president "take care that the laws be faithfully executed." Article II, Section 3, Clause 5. Thus, executive orders can only be used to carry out the will of Congress. If we in Congress have not established the policy or authorization by law, the President can't do it unilaterally.

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