The mechanism for challenging congress law vs executive branch rules/eo is the same no?

Sure the source is different but the outcome is the same, bad.
— Lenard

A very good question indeed. The different methods of the federal government getting an infringement in place are:

  • Congress passes a bill and it is signed into law by the president, or the president vetoes the bill and congress overrides the veto.
  • An agency, established by congress to implement law, puts a regulation into place.
  • The president signs an executive order

When the president signs an executive order he is not creating rules, regulation or laws. He is issuing instructions to the executive branch to do (or not do) something.

When President Trump “Banned bump stocks” his executive order did not ban bump stocks. His EO told the ATF to create regulations that would ban bump stocks.

While it might feel like the same thing in practice it is not. Obama issued orders to the executive branch to not enforce immigration law. Trump issued orders to enforce immigration law. Neither Trump nor Obama could change the law by EO, only direct the enforcement of the law.

While Obama’s “ignore EO” was in place, if a C&BP officer picked up an illegal alien, they could arrest that illegal alien and start proceedings on that illegal alien. That would have all been legal, because the immigration law that made that person an “illegal alien” was still in place. The fact that the people above that officer or the people downstream of that arrest then set the illegal alien free was because of the EO.

To attack an EO in court you go to the court and find standing. This can be difficult or easy. Living in NH it is difficult for me to have standing in Obama having issued EOs regarding illegal aliens. It might be easier for people on our southern border.

Once the court has decided you have standing, you then can ask the court to order the executive branch to follow the law. The left had many successes in finding judges that would find they had standing and then order a nationwide injunction blocking the implementation of Trump’s EOs.

The right had a much more difficult time of finding a court that would grant an injunction much less a nationwide injunction. Instead the injunctions, when given, were narrowly tailored and often held pending appeal.

At no time is the constitution directly involved in these cases. This makes it easier to bring the case.

In the second case, we have an agency making a rule or regulation with the force of law.

These are also challenged in court. They again require the plaintiffs to establish standing. The question then asked is related to procedures “Did the agency follow the law when they drafted the regulation and when they then finalized and published the regulations?” and also if the regulation actually follows the law, as written.

Congress gave the EPA extensive power over the environment. They pass regulations all the time. Those regulations have to be given a public commenting period. The EPA has to “evaluate” those comments. They then have to publish the new regulation(s) in the federal registry in order for them to become active.

The EPA could create a regulation mandating the total amount of sulfur-dioxide that a vehicle can emit per unit time or unit distance. This would be well within the framework of the law which created the EPA. It might be that they demand something that is impossible or at least prohibitively expensive, but it would be within the law.

It would be very difficult to challenge that law in court.

On the other hand, if they created a regulation that required all power lines to have a 20 ft horizontal easement extending upwards 200ft to be kept clear of all vegetation or overhangs that would be easier to challenge.

That easement regulation is outside of the boundaries of the law that created the EPA. The EPA would have to have a reason within those boundaries for the regulation. Just wanting the power to stay on isn’t enough.

The challenge would come from somebody with standing (“They intend to cut down all the trees on my property which provides any privacy!”) and then they would challenge that the regulation does not follow the law, as passed by congress.

Finally we get to laws. Laws have to be challenged by a person with standing as well. It is often times more difficult to find people with standing for challenging a law than for challenging an EO or regulation.

Consider the case of NYSR&PA v. City of New York, New York. In this case they had to find plaintiffs with standing. They found 3 or 4 people that wanted to transport their personal, registered, firearms outside of NYC. They were forbidden because the city had a rule that had the force of law forbidding transportation outside of the city.

The case was attacking a regulation, not because the regulation didn’t follow the rules when it was established, nor because the rule didn’t follow the law, but because it was a violation of the peoples second amendment rights.

The question before the court was whether the law was constitutional as applied. That law was allowed by cause of laws passed at the state level that allowed the city to make law and the police to make rules.

In the end, the police changed the policy/regulation, the city said we won’t do it again, and the state said “we aren’t going to allow the city to do that particular thing again.”

This mooted the case.

In the end, these EOs, regulations, rules, policies and laws are all infringements. They all have to be challenged in court and overturned. There are just more, and easier challenges against EOs, rules, regulation and policies than there are directly against laws.

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By awa

2 thoughts on “Both infringe, what’s the difference?”
  1. Woo I’m famous!
    Thanks for the breakdown, I understand the technical and real differences.
    To expand my point a bit, while and EO does not carry the weight of law or change the law itself, it is defscto law until it is gone. Just like having extreme permitting requirements and may issue is a defacto carry ban. Sure carry isn’t banned but ain’t no one getting a permit so it has the same effect. The EO is for sure more ephemeral but that really isn’t the point if someone’s decree on high makes you a felon.
    I’d also say it is a continuum of clearly within the executive power to Royal decree. The president authorizing and ordering the AFT to process new form ones for machine guns is clearly within his power under the law (it says unless authorized). The president saying to the AFT find a way to call bump stocks machine guns even though you previously said they aren’t and they fit no legal statutory definition is more on the royal decree side.
    I’d also question the regulatory power of agencies. Just because they currently do or can doesn’t me they should or actually legally can. But that is another issue, though obviously linked.

  2. The President is kind of the CEO of a massive corporation. Millions of employees, billions in operating budget. And what the CEO says, the employees do. As long as it is within the bounds of the law. A CEO cannot force an employee to murder or steal. But, they can force the employee to ignore standing company policy, or take the policy to a stricter level.
    A Presidential Executive Order (EO) is essentially the President as the CEO of the Executive branch setting policy for the Executive branch employees. With the bump stocks, the President said “these things make semi-automatics act like machine guns. They should be under the NFA and regulated as such.” So the ATF issued a rule saying they are NFA items and the only reason why the rule failed is a bump stock did not allow the expulsion of more than one round per trigger actuation.
    The pistol brace rule might be within the bounds of the NFA, and follow on laws. Might be a tougher thing to stop because it tightens up an existing law’s definition, does not expand it, or ignore it.

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