Secret Law and the Threat to Democratic Government
“The notion of secret law has been described in court opinions and law treatises as ‘repugnant’ and ‘an abomination’,” observed Sen. Russ Feingold. “It is a basic tenet of democracy that the people have a right to know the law.”
“But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from Congress as well,” he said.
To probe that subject, Sen. Feingold’s subcommittee of the Senate Judiciary Committee held a hearing last April 30, the full record of which has just been published. See “Secret Law and the Threat to Democratic and Accountable Government.”
The hearing volume includes newly published responses (pdf) to questions for the record from John P. Elwood of the Justice Department Office of Legal Counsel, Prof. Dawn E. Johnsen, who is now working with the Obama transition team, former ISOO director J. William Leonard, myself, and others.
This is bigger than a singular elimination of race and ethnicity questions. It could accelerate the second wave of widespread reductions to demographic data, leaving public health officials with even less information to deliver better health outcomes for all Americans.
Soft law was never meant to be a permanent solution. Treating it as one, and letting the sandcastle stand in for the skyscraper indefinitely, is how we end up with a decade of voluntary commitments and no enforceable accountability to show for it.
FAS has partnered with ICLEI USA to launch the CRI Local Advisory Council.
We sat down with Dr. Max Moritz and Chief Rob Hazard to discuss how communities use time, money, and data to reduce the risk that wildfires pose.