[Congressional Record Volume 155, Number 200 (Wednesday, December 23, 2009)]
[Senate]
[Pages S13884-S13885]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself and Mr. Whitehouse):
  S. 2929. A bill to prohibit secret modifications and revocations of 
the law, and for other purposes; to the Committee on Homeland Security 
and Governmental Affairs.
  Mr. FEINGOLD. Mr. President, today Senator Whitehouse and I will 
introduce the Executive Order Integrity Act of 2009. The bill prevents 
secret changes to published Executive Orders by requiring the President 
to place a notice in the Federal Register when he has modified or 
revoked a published Order. Through this simple measure, the bill takes 
an important step toward reversing the growth of secret law in the 
executive branch.
  The principle behind this bill is straightforward. It is a basic 
tenet of democracy that the people have a right to know the law. 
Indeed, the notion of ``secret law'' has been described in court 
opinions and law treatises as ``repugnant'' and ``an abomination.'' 
That's why the laws passed by Congress have historically been matters 
of public record.
  But the law that applies in this country includes more than just 
statutes. It includes regulations, the controlling legal 
interpretations of courts and the executive branch, and certain 
Presidential directives. As we learned at a hearing of the Judiciary 
Committee's Constitution Subcommittee that I chaired last year, some of 
this body of executive and judicial law was increasingly kept secret 
from the public, and too often from Congress as well, under the Bush 
administration. The administration concealed Department of Justice 
legal opinions and interpretations of the Foreign Intelligence 
Surveillance Court.
  The shroud of secrecy extended to Executive Orders and other 
Presidential directives that carry the force of law. The Federal 
Register Act requires the President to publish any Executive Orders 
that have general applicability and legal effect. But through the 
diligent efforts of my colleague Senator Whitehouse, we learned in late 
2007 that the Department of Justice took the position that a President 
can ``waive'' or ``modify'' any Executive Order without any notice to 
the public or Congress--simply by not following it. In other words, 
even in cases where the President is required to make the public, the 
President can change the law in secret.
  The Office of Legal Counsel memorandum that contains this position is 
still classified, but Senator Whitehouse convinced the Department of 
Justice to declassify certain propositions in the memorandum. Among 
them is the proposition that ``[w]henever [the President] wishes to 
depart from the terms of a previous executive order,'' he may do so, 
because ``an executive order cannot limit a President.'' And he doesn't 
have to change the executive order, or give notice that he is violating 
it, because by ``depart[ing] from the executive order,'' the President 
``has instead modified or waived it.''
  Now, no one disputes that a President can withdraw or revise an 
Executive Order at any time; that is every President's prerogative. But 
abrogating a published Executive Order without any public notice works 
a secret change in the law. Worse, because the published Order stays on 
the books, it actively misleads Congress and the public as to what the 
law is.
  This is not just a hypothetical problem dreamed up by the Office of 
Legal Counsel. It has happened, and it could happen again. To list just 
one example, the Bush administration's warrantless wiretapping program 
not only violated the Foreign Intelligence Surveillance Act; it was 
inconsistent with several provisions of Executive Order 12333, the 
longstanding executive order governing electronic surveillance and 
other intelligence activities. Apparently, the administration believed 
its actions constituted a tacit amendment of that Executive Order. Who 
knows how many other Executive Orders were secretly revoked or amended 
by the conduct of the administration over the past 8 years.
  The bill that Senator Whitehouse and I are introducing provides a 
simple solution to this problem. If the President revokes, modifies, 
waives, or suspends a published Executive Order or similar directive, 
notice of this change in the law must be placed in the Federal Register 
within 30 days. The notice must specify the Order or the provision that 
has been affected; whether the change is a revocation, a modification, 
a waiver, or a suspension; and the nature and circumstances of the 
change. If information about the nature and circumstances of the change 
is classified, it is exempt from the publication requirement, but the 
information still must be provided to Congress so that we, as 
legislators, know how the law has been changed.
  That is what our bill does; now let me talk briefly about what our 
bill does not do. First, it does not expand the existing legal 
requirements, under the Federal Register Act, that determine which 
Executive Orders must be published. To the extent the Federal Register 
Act permits a certain amount of ``secret law'' in the form of 
unpublished Executive Orders, our bill leaves that framework in place.
  Second, our bill does not require public notice when the President 
revokes or modifies an unpublished Executive Order--even if the 
substance of the unpublished order is well-known to Congress and even 
the American people. This bill is narrowly aimed at the situation in 
which the American people have been given official notice of one 
version of the law, but a different version is being implemented.
  Third, the bill does not require the President to adhere to the terms 
of an Executive Order. Many scholars have argued that a President must 
adhere to a formally promulgated Executive Order unless or until the 
Order is formally withdrawn or amended, just as the head of an agency 
must adhere to the agency's regulations. I happen to agree. But this 
bill does not take issue with the Bush administration's assertion that 
any deviation from the Executive Order by the President is a 
permissible amendment of that Order. It simply requires public notice 
that the amendment has occurred.
  Fourth, the bill does not require the publication of classified 
information about intelligence sources and methods or similar 
information. The basic fact that the published law is no longer in 
effect, however, cannot be classified. On rare occasions, national 
security can justify elected officials keeping some information secret, 
but it can never justify lying to the American people about what the 
law is. Maintaining two different sets of laws, one public and one 
secret, is just that--deceiving the American people about what law 
applies to the Government's conduct.
  It is my hope and my expectation that the Obama administration will 
not continue the previous administration's practice of purporting to 
amend the law in secret. But even if the administration agrees to end 
this practice, that will not end the need for this legislation. At last 
year's Secret Law hearing, the Deputy Assistant Attorney General for 
OLC testified that during the Iran-Contra scandal in the 1980s, the 
Reagan Department of Justice took the same position: that the President 
could secretly modify executive orders simply by not complying with 
them. We can safely assume that the ability to modify the law in secret 
will hold as much appeal for a future administration as it did for at 
least two administrations in the past. We can't wait for this to happen 
in order to act, because we won't know that it has happened--the entire 
point of the practice, after all, is to keep Congress and the public in 
the dark. The time to prevent this eventuality is now.
  I commend Senator Whitehouse for his tireless work to bring this 
issue to light, and I urge all of my colleagues in the Senate to 
support this modest effort to ensure the integrity of our published 
laws.
   Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

[[Page S13885]]

                                S. 2929

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Executive Order Integrity 
     Act of 2009''.

     SEC. 2. REVOCATIONS, MODIFICATIONS, WAIVERS, AND SUSPENSIONS 
                   OF PRESIDENTIAL PROCLAMATIONS AND EXECUTIVE 
                   ORDERS.

       Section 1505 of title 44, United States Code, is amended by 
     adding at the end the following:
       ``(d) Revocations, Modifications, Waivers, and Suspensions 
     of Presidential Proclamations and Executive Orders.--
       ``(1) Notice required.--If the President, whether formally 
     or informally, and whether through express order, conduct, or 
     other means--
       ``(A) revokes, modifies, waives, or suspends any portion of 
     a Presidential proclamation, Executive Order, or other 
     Presidential directive that was published in the Federal 
     Register; or
       ``(B) authorizes the revocation, modification, waiver, or 
     suspension of any portion of such Presidential proclamation, 
     Executive Order, or other Presidential directive;

     notice of such revocation, modification, waiver, or 
     suspension shall be published in the Federal Register within 
     30 days after the revocation, modification, waiver, or 
     suspension, in accordance with the terms under paragraph (2).
       ``(2) Content of notice.--
       ``(A) In general.--Except as provided under subparagraph 
     (B), the notice required under paragraph (1) shall specify--
       ``(i) the Presidential proclamation, Executive Order, or 
     other Presidential directive, and any particular portion 
     thereof that is affected;
       ``(ii) for each affected directive or portion thereof, 
     whether that directive or portion thereof was revoked, 
     modified, waived, or suspended; and
       ``(iii) except where such information is classified, the 
     specific nature and circumstances of the revocation, 
     modification, waiver, or suspension.
       ``(B) Revised executive order.--Where the revocation, 
     modification, waiver, or suspension of a Presidential 
     proclamation, Executive Order, or other Presidential 
     directive is accomplished through the publication in the 
     Federal Register of a revised Presidential proclamation, 
     Executive Order, or other Presidential directive that 
     replaces or amends the one that was revoked, modified, 
     waived, or suspended, that revised Presidential proclamation, 
     Executive Order, or other Presidential directive shall 
     constitute notice for purposes of paragraph (1).
       ``(3) Classified information.--If the information specified 
     under paragraph (2)(A)(iii) is classified, such information 
     shall be provided to Congress, using the security procedures 
     established under section 501(d) of the National Security Act 
     of 1947 (50 U.S.C. 413(d)), in the form of a classified annex 
     delivered to--
       ``(A) the majority and minority leader of the Senate;
       ``(B) the Speaker, majority leader, and minority leader of 
     the House of Representatives;
       ``(C) the Committee on the Judiciary of the Senate and the 
     Committee on the Judiciary of the House of Representatives; 
     and
       ``(D) if the information pertains to national security 
     matters, the Select Committee on Intelligence of the Senate 
     and the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       ``(4) Rule of construction.--Nothing in this subsection 
     shall be construed as either authorizing or prohibiting the 
     revocation, modification, waiver, or suspension of any 
     Presidential proclamation, Executive Order, or other 
     Presidential directive that was published in the Federal 
     Register through means other than a formal directive issued 
     by the President and published in the Federal Register.''.
                                 ______