Presidential power grab on gun control?

This is a rush transcript from "Hannity," January 9, 2013. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: Tonight, at this very hour, President Barack Obama is considering taking executive action aimed at limiting your Second Amendment rights. This bombshell revelation came from the vice president earlier today during a meeting with his gun control task force. Let's start and take a look at this.


VICE PRESIDENT JOE BIDEN: We're here today to deal with -- the following requires immediate action, urgent action, and the president and I are determined to take action. This is not an exercise in photo opportunities or just getting to ask you all what your opinions are. We are -- we are vitally interested in what you have to say.

We're reaching out to all, all parties on whatever side of this debate you fall. But the president is going to act executive orders -- executive action can be taken, we haven't decided what yet, but we're compiling it all with the help of the attorney general and all the rest of the Cabinet members, as well as legislative action we believe is required.


HANNITY: All right. Did you hear that? Let me repeat what the vice president just said, quote, "The president is going to act through executive orders."

What exactly does that mean? It means that our imperial president is weighing possible changes to gun laws and regulations without seeking the approval of the Congress. In other words, it means that he intends to unilaterally alter the constitutional rights of you, law abiding citizens, without consulting the legislative branch.

Now, if I didn't know any better, I would think I'd be reporting on a story from Cuba, Venezuela, Iran, North Korea, Russia. Unfortunately, this is taking place right here in Obama's America.

For example, Nancy Pelosi, and other Democrats have been urging the president to bypass the Constitution, article one, section seven. They're urging the president to use the 14th Amendment to raise the debt ceiling. And only today did the White House Spokesman Jay Carney seem to back off that unconstitutional idea. But with this group, who knows?

Obama is increasingly relying on executive orders to bypass Congressional authority. Now, this is what he refers to as the we can't wait initiative, or as I call it get the Republicans the hell out of the way initiative. Now, he's been using this for infrastructure projects and economic policies.

Now he's made several recess appointments while the Senate was officially still in session. No president has attempted that power grab. He has also halted deportation of illegal immigrants. In other words, during executive fiat, he adopted provisions of the DREAM Act but we failed to pass it through Congress. And he also unilaterally changed state welfare work requirements without submitting them to Congress for review. Even the non-partisan Government Accountability Office said that he should have consulted Congress in that case.

So, what you're witnessing here is an out of control, an arrogant and unconstitutional executive power grab. And here to talk about the legality of all this to discuss what options the president may be weighing, especially when it comes to the Second Amendment and gun control, from the American Center for Law and Justice, Jay Sekulow, and former special counsel to former President Bill Clinton, Lanny Davis.

Gentleman, welcome back to "Hannity."



HANNITY: Chief Justice Hannity to you, sir.

DAVIS: Chief Justice Hannity.

HANNITY: All right. Lanny --

DAVIS: I didn't know that you were a lawyer much less a Supreme Court justice but congratulations on --

HANNITY: I appreciate the upgrade Lanny, thank you very much.

SEKULOW: You don't have to be a lawyer to be a Supreme Court justice.

HANNITY: I expect both to be making oral arguments any day now on some topic that I will rule in Jay's favor on.

All right. This is a purple nation, Lanny Davis. This is no joking matter when we have a president of the United States using executive order, bypassing Congress, to get done what he cannot get done through the legislative process. That is a problem, Lanny, that's a big problem.

DAVIS: Well, it could be illegal, and if so, it should be challenged and taken to the courts. The Republicans have not been bashful about doing that. You remember that the Affordable Care Act otherwise known by some Republicans as ObamaCare was taken to the Supreme Court.

HANNITY: Barely made it.

DAVIS: I don't know if there's anything illegal. Sometimes executive orders are within the overall authority of a president, some are not. So it should be challenged. I don't favor a president acting illegally, but that's what the courts are for, Mr. Justice Hannity.

HANNITY: You know, but it's also, Jay, I think the president who sworn uphold the Constitution, for example using the 14th Amendment to raise the debt ceiling, it's very clear, article one, section seven. The Second Amendment could not be any more clear and we've laid out what our founders and framers said about it last night. So, the president has a responsibility himself, but he wants to push the envelope. Your reaction?

SEKULOW: Well, look, I mean we shouldn't be surprised, the president said as much before when he was running for re-election. He said, if Congress isn't going to move, he's going to move. Now, let's take a look at each issue. With regard to the Second Amendment, there's no executive order that the president of the United States can issue that's going to override the Second Amendment of the United States Constitution. So, Vice President Biden can be making, you know, platitude statements or saying whatever he wants about executive orders and executive action. But the fact of the matter is, the Second Amendment is not going to be overridden by the president of the United States. And if they try that, that should be challenged and would be challenged successfully.

But there's a connection, Sean, between that issue and the debt issue. This idea that Nancy Pelosi has been advocating and others, that the president could just on his own ignore the debt ceiling limitations and incur debt. The Constitution says exactly the opposite. But again, the fact that you've got Nancy Pelosi and other Democrats saying, this is the way we could go if we have to, shows you that this is a lot of threats and ignoring the constitutional reality of separation of powers, we have an executive branch, a legislative branch and a judicial branch.

HANNITY: My great friend Mark Levin, the great one says, this is a post constitutional America, and this is now taking executive power to a degree that nobody has taken it before without respect to precedent.

Now, let's go to videotape, and the words of Warner Wolf, a great New York sportscaster, Lanny Davis, let's listen to your friend President Obama on the issue of executive privilege and orders back in 2007.


THEN-SENATOR BARACK OBAMA: I think that the issue of executive power and executive privilege is one that is subject to abuse, and in an Obama presidency, what you will see will be a sufficient respect for law and the co-equal branches of government that I hope we don't find ourselves in a situation in which we would be having aides being subpoenaed for what I think everybody acknowledges is some troublesome information out there.


HANNITY: Lanny, if the president can't get an appointment he wants and then the Senate is still in session and he makes a recess appointment, nobody's ever done that before. That's advancing-- go ahead.

DAVIS: Just so your audience knows that you're frequently stated conclusion that I know you sincerely believe which others disagree with. The Senate was not in session.

HANNITY: The Senate was not in recess, Lanny, that's not true.

DAVIS: There was a ploy used by one Republican trying to hold the floor after --

HANNITY: Were they in session or not?

DAVIS: No, they were not in session.

HANNITY: Were they in recess, Lanny? That's not true.


DAVIS: So, let me at least get to the point because there's disagreement on your conclusion.

HANNITY: There's no disagreement.


Let's -- Jay Sekulow, were they in recess?

SEKULOW: Absolutely not. And look, the fact of the matter is, there's a lawsuit that's been brought on this very issue and these were very controversial appointments. The president knew that in fact the Senate was not in recess and he did it anyways. And that's when he said, remember, if Congress doesn't act, he's going to do it on his own. So, this is consistent with his position.

Now it's important, Lanny is right, it's being challenged, we're involved in that case. But the fact of the matter is, I think it's pretty significant that this is a pattern that we've seen now throughout this presidency.

DAVIS: Can I address the Second Amendment and the 14th Amendment issues. The Second Amendment the Supreme Court has held is the right to own firearms. Everybody on the Supreme Court, everyone, unanimously would say, that doesn't mean you can't regulate the use of firearms, just as we already have on the books, background checks are required --


SEKULOW: But you regulate through the legislative branch of government.

DAVIS: So you are allowed to -- I'm sure you'll agree that is not violating the Second Amendment. As for the 14th Amendment, I do not favor the stretch of the Constitution or an imperial presidency, waging war without a declaration of war.

So, there's a little flip here, Republicans love waging war without declarations of war, as they did in Iraq, like they did in Afghanistan --

HANNITY: Lanny, wait a minute. Lanny, wait a second. That's not true. The President George Bush went and he got the authorization for the use of force --

DAVIS: Thank you. That's not declaration of war.

HANNITY: Excuse me. Nowhere in the Constitution does it say you must use certain words, but an authorization for force, everybody with common sense knows that means--


DAVIS: Congress shall declare war.

SEKULOW: That's a really weak argument because that's not even disputed that President Bush had authority for the engagements in Afghanistan and Iraq. But what is an issue here is that the president of the United States --

DAVIS: I happen to think he had authority.

SEKULOW: You said it right. Can the states, can regulations be put in place involving guns? Sure, but there's a Second Amendment, you're right, I think all justices agree that that's a right that exists for individuals. But the president doesn't get to set the regulations or legislations without going through the legislative branch. There's no regulation for him to base the legislation from. In other words, there's no legislation that he can then issure a regulation for. He can't make it upon his own, the Constitution doesn't allow it.

DAVIS: If Justice Hannity doesn't get to the Supreme Court, I think the courts won't uphold your view point, Jay, but let's see what the court say on this subject.

HANNITY: All right. I rule in Jay's favor, case closed.

SEKULOW: Hopefully we don't get that far but we might.

DAVIS: Surprise.

HANNITY: Thank you both.

DAVIS: Thank you, Sean.

HANNITY: This is an important debate, we can't have president, imperial presidency gaining power and legislating through executive fiat bypassing Congress. We have a separation of powers and co-equal branches of government. Thank you both.

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