Updated with Selise’s YouTube. Thanks Selise!
As a number of you pointed out in comments discussing Russ Feingold’s secret law hearing that took place while I was on my trip, NYT believes that Pixie Dust–the process by which the President can "modify" his own executive orders by simply ignoring them–has never before been publicized.
At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation. [my emphasis]
By "unpublicized," I guess they mean "never before scarred a dead tree," because Sheldon Whitehouse gave a great speech about it, I wrote a whole series of posts about it, and Selise’s YouTube of Whitehouse’s speech got a whole bunch of views.
Which, I guess, is a great way to introduce the news I just got today: my Guardian column on Pixie Dust is a finalist for Project Censored from last year–one of the twenty-five most important but under-covered stories from last year.
Which makes the following exchange all the more ironic. When I reviewed the Senate webcast from the hearing, I couldn’t help but appreciate the drama of Sheldon Whitehouse discussing the shoddy bases on which Bush’s three assertions of Presidential super-legality depend. As designated Adminsitrative Unitary Executive David Rivkin apologist tried to defend these opinions, he complained that he couldn’t see the whole opinion.
Uh huh. Now you’re getting it!
Here’s Whitehouse, describing the precedents on which these opinions rely (my transcript, all mistakes my own).
Then you see something like this [points to the Executive Order opinion]; I won’t go through it it’s been in the testimony already. That’s a pretty alarming proposition, that an executive order is just ignorable willy-nilly with no reporting. And when it became apparent that I was going to release this and I had it declassified, I was told it stands on precedent, and when they told me what the precedent was, the precedent was a Griffin Bell opinion that said the President can legally revoke or supersede an executive order at will.
Of course the President can legally revoke or supersede an executive order at will! There’s a process for doing that. That’s a completely different proposition than saying that the executive can use the executive orders of this country as a screen behind which they can operate programs directly contrary to the text of the executive order.