The President would no longer be able to secretly modify or revoke a published executive order if a new bill introduced in the Senate yesterday becomes law.
Finally, the true patriots of the Senate reveal themselves and boldly issue a forthright challenge to the unchecked power of the evil despot; hell-bent on taking this country into the aphotic depths of tyranny.
Actually, Senators Feingold and Whitehouse have introduced legislation that would essentially impel Bush to bring his egregiously misused Executive Order prerogative process out of the shadows and into the ever-cleansing rays of sunlight, forcing him to publish his intentions in the Federal Register at least 30 days before the enactment of any such order.
Sponsored by the aforementioned senators, S. 3405, or the Executive Order Integrity Act of 2008 responds to a secret Justice Department Office of Legal Counsel Opinion revealed last year by Senator Whitehouse on the Senate floor. According to that unreleased opinion:
"There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it."
From the FAS Project on Government Secrecy:
What this means is that any published executive order may or may not actually be in effect. It may or may not correspond to the legal framework that governs the executive branch. The public has no way of knowing.
"No one disputes that a President can withdraw or revise an Executive Order at any time," said Senator Feingold yesterday. "That is every President’s prerogative. But abrogating a published Executive order without any public notice works a secret change in the law."
"Worse," he said, "... because the published Order stays on the books, it actively misleads Congress and the public as to what the law is."
To remedy that problem, the new bill requires notification of any change.
Let’s face it, folks, the days of complacency in America are over. If there’s one thing the Bush
era error has taught us it is that if we’re not paying attention -- if our only concerns are American Idol and the latest version of the iPod -- our federal government will rob us blind of both our freedoms and our treasure. Our elected leaders are not trustworthy and if we are ever to regain the representative democracy we always thought we had but really didn’t; it is each American’s duty to pay attention to what they’re doing in Washington D.C. We must watch 'em like a hawk.
And, it just so happens there is a tool available to aid us in our quest for the more perfect union. There’s a website out there in the inter-tubes that keeps track of all published presidential prerogatives like signing statements, executive orders and presidential directives, and will track in real time any changes to those prerogatives. The GPO Access Federal Register website is a due diligent citizen’s very best friend. If we have 30 days notice of an order (or change to an existing order) then we have time to raise hell to Congress, and/or perhaps even get the press to report on it.
I would hope everyone gets acquainted with the website.
More from the new bill:
"If the President revokes, modifies, waives, or suspends a published Executive Order or similar directive, notice of this change in the law must be placed in the Federal Register within 30 days. The notice must specify the Order or the provision that has been affected; whether the change is a revocation, a modification, a waiver, or a suspension; and the nature and circumstances of the change."
"The bill does not require the publication of classified information about intelligence sources and methods or similar information. The basic fact that the published law is no longer in effect, however, cannot be classified," Sen. Feingold said.
"On rare occasions, national security can justify elected officials keeping some information secret," he said, "but it can never justify lying to the American people about what the law is. Maintaining two different sets of laws, one public and one secret, is just that–deceiving the American people about what law applies to the government’s conduct."
See Sen. Feingold’s July 31 introduction of the Executive Order Integrity Act of 2008 (S. 3405).
At an April 30 hearing of Sen. Feingold’s Senate Judiciary subcommittee, the proprietor of the Secrecy News website, Steven Aftergood, testified on the various categories of secret law, including the problem of "reversible executive orders." That testimony is available here (pdf).
I hope Obama goes even further in restricting presidential prerogatives after he takes office, but until then, Feingold and Whitehouse have started the proverbial ball a’ rolling.