Executive order vs Supreme Court

[BAT1]

Could an executive order override the supreme court ruling on the 2 nd? Say the the Supreme's vote in favor of individual gun owners. Could the president override with an executive order such as martial law or something?

 

[TexasRifleman]

Well he "could" do that.

Take for example the Guantanamo Bay detention stuff. That's by executive order and the Supremes eventually heard it in Hamdan v Rumsfeld.

So Exec Orders can be of that magnitude but they usually end up as a train wreck for the President and before the Court anyway.
They can also lead to impeachment.

The dangerous ones are the smaller little things like ammo import restrictions etc.

 

[AirForceShooter]

Yeah, it's illegal but we're going to do it anyway.

Happens all the time.

AFS

 

[ODA 564]

I'm trying to put my finger on the reason for the original question.

Is the assumption that we are so close to sliding into a dictatorial police-state that "we" assume that "they" will try to use a 'individual rights' ruling in Heller to impose martial law?

Or is it theoretical. In theory, anything could happen.

Will an American president, without any other factors, order martial law? Probably not. Could it happen? Not with out some sort of cataclysmic event that predisposed the Congress, the media, the state governments, the people and the military to accept it. Multiple nuclear attacks, maybe. An "individual right" Heller decision? No.

 

[El Tejon]

A President ignore the Supreme Court? You mean like Andrew Jackson or someone else?

BAT, the President could do many things:

1. declaring martial law is waaaay out there;
2. delay implementation of Supreme Court orders;
3. introduce legislation to prevent the Supreme Court from having jurisdiction over the Second Amendment (likely, especially if Democrats win big in '08);
4. increase gun owner harrassment via FBI, ATFE, Customs and local law enforcement.

 

[Drail]

ODA 564, wouldn't you agree that the 911 attack was exactly the type of cataclysmic event you just described? Did George Bush seize that opportunity to impose his will on the country?

 

[takhtakaal]

Did George Bush seize that opportunity to impose his will on the country?

That's a matter of opinion for some.

We're talking about Heller, though, and looking at the train-wreck field of possible candidates before us, it's possible that one of them really would try to override SCOTUS by imposing their personal will through EOs.

Tell me that this guy isn't willing to sell us out to the UN and disarm us, too: http://www.youtube.com/watch?v=dl32Y7wDVDs

 

[k_dawg]

If we assume for the sake of arguement, that Gitmo is 100% unconstitutional; it still only affected a very few non-american citizens outside of the USA.

This is substantially different in scope than an executive order which would strip a constitutional right from every law abiding US citizen inside of the USA.

 

[TexasRifleman]

This is substantially different in scope than an executive order which would strip a constitutional right from every law abiding US citizen inside of the USA.

Of course it is, and it is the VERY reason the Second Amendment is in place in the first place though that's the area no one wants to talk about.

It also hasn't happened yet though, and won't. Not to the extent the OP is talking about. It will be much more subtle and harder to fight.

It's underway already and has been for many years.

Under the guise of "executive orders" we have ammo import restrictions, "sporting purpose" BS, etc.

Look at Bush I's executive order around semi-auto imports for some real world fun.

 

[Kentak]

Huh? Where is this question coming from? Why would a president do that?

 

[LAR-15]

Paranoia?

 

[zxcvbob]

...introduce legislation to prevent the Supreme Court from having jurisdiction over the Second Amendment (likely, especially if Democrats win big in '08);

There is some question about whether the Congress has the authority to remove jurisdiction from the Supreme Court on constitutional issues. (Justice Roberts suggested that Congress does not have that authority during his confirmation hearings, and Arlen Spector or whoever it was didn't disagree with him.)

 

[El Tejon]

zxcv, very true. Just being it up as President Obama's possible response to a pro-individual rights ruling in Heller.

Depending on what happens in November of '08 I believe this will be the response--prevent the pro-gun movement from having access to the courts. They must doing something procedurally as they cannot win the issue on the merits.

 

[Titan6]

Huh? Where is this question coming from? Why would a president do that?

Why indeed? When you examine things like Nixon's imposition of price and wage controls the reasons become obvious. It is knee jerk response to an otherwise failed public policy. In Nixon's case he was trying to overcome the failure of leaving the gold standard and the devaluing of the US dollar. He had absolutely no authority to do it but it was a popular idea at the time and he had plenty of public support.

 

[takhtakaal]

It is knee jerk response to an otherwise failed public policy.

See, that's just it. It's the "I know better and will decide for all you misguided peons" attitude on the part of some people campaigning for president that makes me think that they're entirely capable of trying to do with a single stroke of the pen what SCOTUS may have made otherwise impossible.

We need to do everything legally possible to see to it that anyone so disposed isn't elected.

 

[yinyangdc]

and which one of our current 3 options would you say is not "so disposed"?

 

[geekWithA.45]

Take for example the Guantanamo Bay detention stuff.

You mean the stuff where foreign citizens, having been taking on the field of battle bearing arms against the USA, without the benefits and protections of fighting for any recognized nation, and never having been on US soil, are detained on foreign soil, and not determined to have the same full blown rights as US citizens on US soil?

That stuff?

I know there's a lot of nuance and complexity there.

A lot of folks seem to behave as if there wasn't any complexity at all, and to treat the Gitmo situation as if any of the inmates were US citizens plucked randomly from the streets under slight pretense.

 

[Gator]

Did George Bush seize that opportunity to impose his will on the country?

No.

 

[Harley Quinn]

George Bush 1 did a few things that were pretty anti gun, was mostly about the importing of them, his wife (Barbara Bush) and ex Chief D Gates of LA, crusaded the son GB2 to do something about it also.

http://www.time.com/time/magazine/article/0,9171,151492,00.html?iid=chix-sphere

Read it, if you want some good information that is not normally discussed of late.

 

[Cosmoline]

The martial law business is just absurd, forget about it. HOWEVER, the use of executive orders and legislation to impose import and manufacturing restrictions IS something we need to keep careful watch for. The Court has a long history of deferring to the President when it comes to regulating trade with other nations. One way an anti-gun Pres could cause problems would be to impose restrictions on surplus arms imports, ammo imports and firearm imports. It's unlikely any of this would run counter to the Second. Ironically the best means of challenging such restrictions would be through the WTO and other trade agreements as an unfair trade practice.

 

[RP88]

executive orders on imports and the like is something that could happen and be hard to fight against.

That, along with the possible second AWB and ammo serialization is about all they could really do and get away with. An EO on imports would be the worst, since there would be no means to fight against it because it can be argued quite convincingly that the EO doesnt violate the basic right to bear arms (just means that ammo prices for certain calibers will jump)

Trying to prevent access to courts or limiting the supreme court's power to where it cannot check any of the other branches will get alot of politicians in alot of trouble. Not even today's SCOTUS would stand for such a slap to the face.

 

[TexasRifleman]

You mean the stuff where foreign citizens, having been taking on the field of battle bearing arms against the USA, without the benefits and protections of fighting for any recognized nation, and never having been on US soil, are detained on foreign soil, and not determined to have the same full blown rights as US citizens on US soil?

That stuff?

That's exactly my point. The OP asked about Executive Orders having no review by the Supreme Court.

That is highly unlikely. In the Gitmo case, even an executive order not impacting US citizens went before the Court. You can be certain anything remotely resembling martial law would.

 

[PaladinX13]

Regarding citizens, then consider the executive order at issue in Korematsu (internment of U.S. citizens of Japanese descent). If completely law-abiding citizens can be interned based on the suspected actions of a few within their class and be deemed Constitutional by SCOTUS (long after the order lost both relevance and legitimacy- the war was won and no espionage ever uncovered)... then a gun-owning minority's arms, in some cases, may be reachable on similar grounds.

Remember that SCOTUS has neither the purse of Congress nor the sword of the Executive....

 

[TexasRifleman]

Remember that SCOTUS has neither the purse of Congress nor the sword of the Executive....

Ahh but they have us law abiding gun owners as the "last sanity check", if they will just remember that when they rule on Heller.

 

[damien]

How can an executive order override the court? For the executive to get anything done, he will have to bring people who are violating his order to court. The court will simply not uphold an executive order over a Supreme Court decision.

At that point, the executive will have to either give up or start detaining people without court hearings. If the second happens, expect all hell to break lose and either the executive is impeached or states to start to withdraw from the union.