A bill introduced in the Senate last week would prevent the President from secretly modifying or revoking a published executive order. The bill, S. 3405, the “Executive Order Integrity Act of 2008,” is sponsored by Sen. Russ Feingold (D-WI) and Sen. Sheldon Whitehouse (D-RI). As reported by Secrecy News, the bill comes in response to an Office of Legal Counsel (OLC) opinion, revealed last year by Sen. Whitehouse, who, as a member of the Senate Intelligence Committee, was granted access to OLC secret opinions.
Sen. Whitehouse found that, according to one secret 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.”
To prevent a President from changing an Executive Order in secret, S. 3405 would require that notice be placed in the Federal Register within 30 days if a President revokes, modifies, waives, or suspends a published Executive Order or similar directive.
Steven Aftergood, author of Secrecy News, testified last April at a Senate Judiciary Committee hearing, “Secret Law and the Threat to Democratic and Accountable Government,” on the various categories of secret law, including FISA Court Opinions, OLC opinions, and secret Presidential Directives. More information about the hearing, including testimony of all witnesses, is available on the Senate Judiciary Committee’s web site here.
[Posted by Emily Feldman]