Whitehouse and Feingold Strike Back at Pixie Dust

Pixie Dust, as I’ve explained it, is the process by which the Bush White House has relied upon an OLC opinion stating that the President doesn’t have to rewrite his Executive Orders before he violates it. If he acts contrary to an Executive Order, that constitutes "modifying" the order, even if he never publicly changes the order. Hell, apparently in this White House, the VP could make up his own interpretations of Executive Orders, even if the White House Counsel told him he was wrong.

Uh huh.

Sheldon Whitehouse and Russ Feingold think that whole concept is as ridiculous as we think it is–and they’ve just sponsored a bill to end the practice.

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.

"Executive Order Integrity Act"? That’s not very colorful. I wonder if it’s too late to get them to rename it the "Pixie Dust Prevention Act"?

  1. Skilly says:

    The pres would never sign it. The “Pixie Dust Prevention Act” is too accurate a description of the bill for his approval.

  2. Neil says:

    I hope they get the bill on Bush’s desk before the election so he can veto it. More likely he won’t veto but submit a signing statement that says some or all of the provisions, where in conflict with Article II powers, do not have the force of law. This perpetual executive law-breaking needs more emphasis in the election.

    Has anyone looked at Obama’s answers to Charlie Savage’s questions about executive power in light of these issues and Obama’s position on government surveillance power? These issues may be items we wish to masaccio’s What Should Obama Do For Us? list, under the category, Accountability, moving forward.

  3. SparklestheIguana says:

    I don’t like the 30 day notice. That’s 30 days of extra mischief. What’s wrong with 5 business days?

    Anyway, even if Bush does sign it, it will be in disappearing ink.

  4. stryder says:

    Just in time to prevent any new admin from doing to them what they have done to everyone else.
    Why now? What’s the hurry?

  5. danps says:

    Sorry, but this kind of crap is a waste of time. Congress needs to enforce existing violations of the law instead of trying to think up every loophole that a creative administration will dream up in the future. That’s a fool’s errand – the problem isn’t that the law is ambiguous, it’s that the administration is contemptuous of laws and the body that creates them. Every time they do one of these “let’s criminalize waterboarding again and then it will be really illegal” exercises they are playing into the adminsration’s hands.

    Don’t those guys get tired of being beaten like a drum?

    • wavpeac says:

      I tend to agree with you here. Our crises is really about the fact that our congress is not keeping it’s agreement with the american public who elected them to provide oversight. The current laws are being followed so why make more laws NOT to follow??

  6. bell says:

    remember, they’re all lawyers before becoming politicians… they make laws and then they think up creative ways to circumvent them… getting rid of a law or enforcing what has already been established is not their natural inclination…. see the national debt for a good example….politicians/lawyers ought to think of their work as part of the disposal/recycle business… they are “full of it” most of the time and need to learn how to “get rid” of rather then “add to” the last guys mess…. this is what lawyers do though: make things messier….