– Tim Brown

This week Vice President Joe Biden alluded to Barack Obama possibly using executive order to impose gun control. Biden said this during a meeting surrounded by several gun control groups and gun violence victims. The question on many people’s minds is, “Can this actually happen?”

First, let’s understand what an executive order actually is. It is supposed to be an order delivered by the President to those under his authority, sort of like the CEO of a company giving direction to those under him. According to the National Archives:

Executive orders are official documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government.

The text of Executive orders appears in the daily Federal Register as each Executive order is signed by the President and received by the Office of the Federal Register. The text of Executive orders beginning with Executive Order 7316 of March 13, 1936, also appears in the sequential editions of Title 3 of the Code of Federal Regulations (CFR).

Robert Longley at About.com also confirms this is how executive orders work and adds, “While they do bypass the U.S. Congress and the standard legislative law making process, no part of an executive order may direct the agencies to conduct illegal or unconstitutional activities.

Executive orders are not to be used to bypass the legislative branch, but they are to be used simply under the executive branch. In other words they can be used to direct executive agencies on implementing Congressional approved legislation. Typically these are used for the purpose of:

1. Operational management of the executive branch
2. Operational management of federal agencies or officials
3. To carry out statutory or constitutional presidential responsibilities

At least that is what they are supposed to be used for. The Constitutional authority for presidential executive orders are normally cited to be found in Article II, Section 1 of the U.S. Constitution, which reads, “The executive power shall be vested in a president of the United States of America,” and Article II, Section 3 which states, “The President shall take care that the laws be faithfully executed…”

So there is authority granted to the President and that has been recognized even by our first President, George Washington, who signed his first executive order in 1789. He was not alone. Many of the founders, who became President, such as John Adams, James Madison, and James Monroe issued one executive order each. While President Franklin D. Roosevelt issued 3,522!

So the question we have to deal with is “Is it possible that Barack Obama could sign an executive order to impose gun control?” The answer is, “Yes, it is possible he could sign such an executive order.” The issue though, is whether or not such an executive order would be lawful and upheld by the Congress or the Supreme Court. Congress may pass a law that alters an executive order, and they can be declared unconstitutional and vacated by the Supreme Court. A recent Congressional response to an executive order can be found here.