August 1, 2008

Feingold, Whitehouse Introduce Bill to Help Curb “Secret Law”

Executive Order Integrity Act Would Require Public Notice When the President Makes Changes to Published Executive Orders

Washington, D.C. – U.S. Senators Russ Feingold (D-WI) and Sheldon Whitehouse (D-RI) have introduced legislation to prohibit the President from relying on one form of “secret law.” The Feingold-Whitehouse bill would require public notice when the President modifies, revokes, waives, or suspends a published executive order or similar Presidential directive that carries the force of law and binds the Executive Branch. The legislation responds to a legal opinion of the Department of Justice’s Office of Legal Counsel which concludes that a President can modify or waive an executive order without public notice, simply by not following it. This legal conclusion by OLC was made public in December 2007 through the efforts of Whitehouse and examined at an April 30th hearing of the Senate Judiciary Committee Constitution Subcommittee on the subject of “Secret Law” chaired by Feingold.

“No one disputes a President’s ability to withdraw or revise an Executive Order,” Feingold said. “But modifying or even throwing out a published Executive Order without any public notice is a way of secretly changing the law. And since the Executive Order stays on the books, Congress and the public are misled about what the real law is. This bill is an important step toward stemming the growth of secret law in the executive branch.”

“The Bush Administration’s relentless efforts to conduct government in secret have undermined the rule of law and too often betrayed the trust of the American people,” said Whitehouse, a former Rhode Island U.S. Attorney and Attorney General who first made OLC’s conclusion public. “This measure will help restore the rule of law, disciplined by the balance of power established under the Constitution.”

The bill, called the Executive Order Integrity Act, would require notice to be published in the Federal Register 30 days after the President revokes, modifies, waives, or suspends a published Executive Order. The notice would identify the Executive Order or portions thereof that were affected; whether the change that occurred was a revocation, modification, waiver, or suspension; and the nature and circumstances of the change.

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