That's what I'm saying... An EO requires some sort of law to start from. Without that law however I don't see how any EO could ban categories of firearms.
The only laws required for an executive order are those that grant the president his authority in the first place. Although the Constitution makes no provision for EO's, there is a vague notion of "executive power" in Article II, Sec. 1, Article 1 that has formed the basis for EO's.
Here is how it is explained on About.com:
"A presidential executive order (EO) is a directive issued to federal agencies, department heads, or other federal employees (bolding added) by the President of the United States under his statutory or constitutional powers.
In many ways, presidential executive orders are similar to written orders, or instructions issued by the president of a corporation to its department heads or directors...
Presidents typically issue executive orders for one of these purposes:
1. Operational management of the executive branch
2. Operational management of federal agencies or officials
3. To carry out statutory or constitutional presidential responsibilities"
They become law after 30 days.
They are intended to change the way the government/federal agencies does things (but not to enact laws - the President doesn't have Constitutional authority to do that; that is left to the legislature), so in that respect, it is difficult to see how the president could unilaterally use an EO to reinstate the AWB. However, once the president has issued an EO, the only way that it can be vacated is if congress passes a law specifically setting it aside and then has the votes to override the presidential veto that is certain to come, or if SCOTUS declares it to be unConstitutional and vacates it; that has only happened twice in our history (FDR used an EO to make stockpiling of gold by persons or companies a crime; it was never set aside.). In the meantime, the EO remains in force until one of those two things take place.
This is where things get tricky. Carney said, "...administratively where allowed..." Teddy Roosevelt believed in the "Stewardship Theory" of the Constitution - just as Obama does. This theory states that the President is the only person in the government that can see the whole picture, and so, "he has the authority to act for the national good. This means that the president can do anything in the public interest except what is explicitly forbidden in the Constitution" (
Link Removed). So if the White House Counsel is able to find some way to interpret the Constitution as giving the president the power to use an EO to enact a law, "...for the national good...", we know from past experience that he will run with it. And since an election is coming up, he will count on the fact that congress will be too busy trying to get re-elected to put any time into stopping him, and it could take years before SCOTUS gets the case. So in the meantime, the ban would go back into effect. He has already made the argument that the AWB is in the national interest.
