President Obama Has Issued a Form of Executive Action Known As the Presidential Memorandum

President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.

When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the "Do Nothing Congress" almost seven decades ago, according to a USA TODAY review of presidential documents.

Obama has issued executive orders to give federal employees the day after Christmas off, to impose economic sanctions and to determine how national secrets are classified. He's used presidential memoranda to make policy on gun control, immigration and labor regulations. Tuesday, he used a memorandum to declare Bristol Bay, Alaska, off-limits to oil and gas exploration.

The law does not define the difference between an executive order and a memorandum, but it does say that the president should publish in the Federal Register executive orders and other documents that "have general applicability and legal effect."

"Something that's in a presidential memorandum in one administration might be captured in an executive order in another," said Jim Hemphill, the special assistant to the director for the government's legal notice publication. "There's no guidance that says, 'Mr. President, here's what needs to be in an executive order.' "

He's already signed 33% more presidential memoranda in less than six years than Bush did in eight. He's also issued 45% more than the last Democratic president, Bill Clinton, who assertively used memoranda to signal what kinds of regulations he wanted federal agencies to adopt. In fact, no president has used them to this level since 1945, when Truman was at the height of the closing out a war that lasted from 1915 until 1945.

Obama has issued almost 400 total executive orders and memoranda and he has two years to go.

The New American Civil War

A Missouri bill prefiledfor introduction in the Missouri State House for 2015 could effectively nullify federal executive orders signed into existence by the President.

House Bill 255 (HB255),byState Rep. Tim Remole (R-Excello), seeksto rebuke what is seen by many as federal lawlessness from the executive branch. The full text of the bill is as follows:

Any federal regulation or rule promulgated as a result of an executive order of the President of the United States repugnant of the Constitution of the United States or the Constitution of Missouri shall be declared invalid in the state of Missouri. Such regulations and rules shall be considered null and void and of no effect.

It shall be the duty of the general assembly to adopt and enact any and all measures as may be necessary to prevent the enforcement of regulations and rules issued by a presidential executive order.

This measure would nullify in practice the effects of many presidentialexecutive orders and memorandums. Pres. Obamahas used these privileges to circumvent Congress and move his agenda forward without the proper checks and balances required by the Constitution. But, without state support and resources, federal programs often cannot be effectuated. As the National Governor’s Association noted in a 2013 statement, “states are partners with the federal government on most federal programs.”

“Partnerships rarely work when one side doesn’t participate,” said Michael Boldin of the Tenth Amendment Center. “By prohibiting any action that would give effect to such orders, the state of Missouri will defang their power in practice.”

Obama has already issued more of these commands than any other President in over six decades, as a USA Today report explains:

President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.

When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents.

Obama’s executive orders and presidential memoranda have already been used to make policy on issues pertaining to firearms, immigration, energy and labor – with Congress offering little more than lip service as it persists.

Because Congress is so ineffectual in their role of checking the President’s power, measures such as HB255 are vitally necessary, and should be introduced in all states.

The state of Missouri now has the opportunity to lead on this important issue, and to become the potential standard bearer for resisting executive orders at the state leve

South Carolina Nullifies EO’s on Guns.

Senator Davis has filed SB 224 which is a Joint Resolution to Nullify Executive Orders infringing upon the second amendment, and the right to keep and bear arms. This Joint Resolution has been referred to the Senate Committee of Judiciary.

SB 224 states, “Any federal executive order restricting, abridging, or otherwise infringing upon the free exercise of a citizen’s second amendment right to keep and bear arms is unconstitutional and shall not be enforced by any federal, state, or local law enforcement agency within South Carolina.”

Senator Davis referenced District of Columbia v. Heller. This Supreme Court held that, “the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.”

Also, Senator Davis held that Executive Orders are not a way to skirt Congress and enact laws. The purpose of executive orders are “to direct and manage the operation of the executive branch of the federal government.”

The president has no constitutional authority to use an executive order to write laws. Congress is the only entity granted power to make laws.

Article 1 Section 8 states, “Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Congress has that power. Not the president.

Senator Davis continues in SB 224 that, “executive orders issued by the President may not exceed his constitutional authority or stand in violation of any legislation passed by Congress, and Congress retains the power to overturn executive orders.”

SB224, if passed, would declare that any unconstitutional exeecutive orders to infringe on the right to keep and bear arms in the State of South Carolina are null and void, and “shall not be enforced by any federal, state, or local law enforcement agency within South Carolina.”

The Second Amendment was not created to give the right to bear arms to the people, but it was created to limit the trespass of the federal government on its citizens.

Robert Natelson writes in The Original Constitution “The Second Amendment served purposes besides buttressing the natural right of self-defense and the reserved power of armed resistance. By guaranteeing continuation of the state militias, it strengthened state power in the state-federal balance…By protecting the militia, the Amendment promoted citizen involvement in government military affairs.”

The threats of banning certain types of firearms to ammo or accessories still infringes on the second amendment just as in the Heller case. Robert Natelson writes, “The purpose of the Second Amendment suggests that the word “arms” should be interpreted rather broadly to include a range of military and self defense weapons.”

Executive Orders can be Extreme and still Endure, Unenforced

Executive Order 44 was issued by Governor Lilburn Boggs of Missouri during the 1838 Mormon War, which had been caused by friction between the Mormons and their neighbors, largely due to tensions resulting from the growing economic and electoral power of the Mormon community, and the Mormons' vocal opposition to slavery.[1][7] The war ended with the expulsion of almost all Mormons from the state of Missouri.[8][9] The Mormons had been given a county of their own to settle in after their expulsion from Jackson County in 1833, but the increasing influx of new Mormon converts moving to northwestern Missouri led them to begin settling in adjacent counties. This provoked the wrath of other settlers, who had operated under the assumption that the Mormons would remain confined to Caldwell County.[10]

On the fourth of July in 1838, Mormon leader Sidney Rigdon delivered an oration in Far West, the county seat of Caldwell County. While not wishing or intending to start any trouble with his non-Mormon neighbors, Rigdon wanted to make clear that the Mormons would meet any further attacks on them—such as had occurred in Jackson County during the summer and fall of 1833—with force:

“ / We take God and all the holy angels to witness this day, that we warn all men in the name of Jesus Christ, to come on us no more forever. For from this hour, we will bear it no more, our rights shall no more be trampled on with impunity. The man or the set of men, who attempts it, does it at the expense of their lives. And that mob that comes on us to disturb us; it shall be between us and them a war of extermination; for we will follow them till the last drop of their blood is spilled, or else they will have to exterminate us: for we will carry the seat of war to their own houses, and their own families, and one party or the other shall be utterly destroyed.—Remember it then all MEN.[11] / ”

Far from settling tensions, Rigdon's oration had the opposite effect: it terrified and inflamed the residents of surrounding counties. By the Fall of that same year these tensions escalated into open conflict, culminating in the looting and burning of several Mormon farms and homes, the sacking and burning of Gallatin by Mormon "Danites", and the taking of Mormon hostages by a militia unit commanded by Cpt. Samuel Bogart, operating in northern Ray County (to the south of Caldwell). When Mormon militia from the town of Far West moved south to the militia camp on the Crooked River to rescue their co-religionists, the resulting battle aroused considerable terror throughout the western part of the state. Lurid rumors of a planned full-scale Mormon invasion of Missouri had run rampant throughout the summer, and these only increased as reports of this "Battle of Crooked River" reached the capital at Jefferson City, with spurious accounts of Mormons allegedly slaughtering Bogart's militia company, including those who had surrendered.[12] Further dispatches spoke of an impending Mormon attack on Richmond, county seat of Ray County, though in fact no such attack was ever contemplated.[13] It was in this environment of fear and misinformation that Boggs chose to act.

Boggs issued Executive Order #44 to General John Clark, whom he had appointed to head up the state militia forces being assembled to reinstate citizens of Daviess County (north of Caldwell) who had been allegedly driven from their homes by renegade Mormons. Having heard lurid reports of alleged Mormon depredations on the Crooked River, Boggs directed Clark to change his mission to one of direct military operations against the Mormons themselves.[14][15][16]

The original handwritten "Extermination Order", issued by Governor Lilburn Boggs in October 1838.

Text of the Order

Boggs' Missouri Executive Order Number 44, read as follows:

“ / Headquarters of the Militia, City of Jefferson, Oct. 27, 1838.
Gen. John B. Clark:
Sir: Since the order of this morning to you, directing you to cause four hundred mounted men to be raised within your division, I have received by Amos Reese, Esq., of Ray county, and Wiley C. Williams, Esq., one of my aids [sic], information of the most appalling character, which entirely changes the face of things, and places the Mormons in the attitude of an open and avowed defiance of the laws, and of having made war upon the people of this state. Your orders are, therefore, to hasten your operation with all possible speed. The Mormons must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace--their outrages are beyond all description. If you can increase your force, you are authorized to do so to any extent you may consider necessary. I have just issued orders to Maj. Gen. Willock, of Marion county, to raise five hundred men, and to march them to the northern part of Daviess, and there unite with Gen. Doniphan, of Clay, who has been ordered with five hundred men to proceed to the same point for the purpose of intercepting the retreat of the Mormons to the north. They have been directed to communicate with you by express, you can also communicate with them if you find it necessary. Instead therefore of proceeding as at first directed to reinstate the citizens of Daviess in their homes, you will proceed immediately to Richmond and then operate against the Mormons. Brig. Gen. Parks of Ray, has been ordered to have four hundred of his brigade in readiness to join you at Richmond. The whole force will be placed under your command.
I am very respectfully, yr obtst [your obedient servant],
L. W. Boggs, Commander-in-Chief.[17] / ”

Aftermath and rescission

Although the Extermination Order technically became inoperative with an end to the state of war and the surrender of Mormon leaders at Far West on November 1, it continued to dignify the forced removal of the Mormons by unauthorized citizens and renegade militia units. The Mormons in Caldwell County had been forced, as part of their surrender agreement, to sign over all of their property to pay the expenses of the campaign against them; although this act was later held unlawful,[18] the Mormons were still forcibly ejected from their homes—often at gunpoint—and forced to leave Missouri with only what they could carry. Although Boggs belatedly ordered a militia unit under Colonel Sterling Price (later to achieve fame as a ConfederateCivil War general) to northern Missouri to stop ongoing depredations against the Mormons, he refused to repeal Order #44.[19] The Missouri legislature deferred discussion of an appeal by Mormon leaders to rescind the decree, and nearly all Latter Day Saints—more than 10,000 altogether—had been driven from the state by the spring of 1839.

Boggs himself was excoriated in certain portions of the Missouri press, as well as those of neighboring states, for his action in issuing this order.[20] General David Atchison, a prominent non-Mormon legislator and militia general from western Missouri who had refused to take part in operations against the Mormons, demanded that the Legislature formally state its opinion of Boggs' order, for "he would not live in any state, where such authority was given".[21] Although his proposal and similar ones by others went down to defeat, Boggs himself saw his once-promising political career destroyed as a result of the Mormon War (and especially due to his "extermination order"), to the point that by the time the next election came around, even his own party (the Democratic Party) was reluctant to be associated with him.[22] After surviving an assassination attempt in 1842, Boggs ultimately emigrated to California, where he died in relative obscurity in the Napa Valley in 1860.[23]

Boggs' extermination order, long unenforced and forgotten by nearly everyone outside the Latter Day Saint community, was formally rescinded by Governor Christopher S. Bond on June 25, 1976, 137 years after being signed. In late 1975, President Lyman F. Edwards of the Far Weststake of the Reorganized Church of Jesus Christ of Latter Day Saints, now known as the Community of Christ, invited Bond to participate in the stake's annual conference as a good-will gesture for the United States Bicentennial.[24] As part of his address at that conference, Bond presented the following Executive Order:

“ / WHEREAS, on October 27, 1838, the Governor of the State of Missouri, Lilburn W. Boggs, signed an order calling for the extermination or expulsion of Mormons from the State of Missouri; and
WHEREAS, Governor Boggs' order clearly contravened the rights to life, liberty, property and religious freedom as guaranteed by the Constitution of the United States, as well as the Constitution of the State of Missouri; and
WHEREAS, in this bicentennial year as we reflect on our nation's heritage, the exercise of religious freedom is without question one of the basic tenets of our free democratic republic;
Now, THEREFORE, I, CHRISTOPHER S. BOND, Governor of the State of Missouri, by virtue of the authority vested in me by the Constitution and the laws of the State of Missouri, do hereby order as follows:
Expressing on behalf of all Missourians our deep regret for the injustice and undue suffering which was caused by the 1838 order, I hereby rescind Executive Order Number 44, dated October 27, 1838, issued by Governor W. Boggs.
In witness I have hereunto set my hand and caused to be affixed the great seal of the State of Missouri, in the city of Jefferson, on this 25 day of June, 1976.
(Signed) Christopher S. Bond, Governor.[25]

The History of Nullification