Senate Bill Would Bar Secret Changes to Executive Orders

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.

The bill, sponsored by Sen. Russ Feingold and Sen. Sheldon Whitehouse, responds to a Justice Department Office of Legal Counsel opinion that was 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.”

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.

“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 The basic fact that the published law is no longer in effect, however, cannot be classified,” Sen.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 Senate Judiciary subcommittee, I testified on the various categories of secret law, including the problem of “reversible executive orders.” That testimony is available here (pdf).