This article has been updated with Slate readers' nomination for the 10th Bush executive order that the next president should scrap. The most popular choice has been added to the end of the article.
The presidency comes with a superpowered pen for signing executive orders. Without negotiating with Congress to pass a law, or even going through the notice-and-comment period that precedes a new federal rule, the president can change the music that federal agencies dance to. He's the executive, and it's his executive branch.
What, then, is the worst of the damage President Bush has caused all on his own? In putting together a top (or bottom) 10 list from the Bush administration's 262 EOs, we sifted through some familiar targets, such as his faith-based initiative and diversion of funds from stem-cell research. We also realize that some of the Bush moments we rue didn't come in the form of an executive order. The recent bid to force family-planning clinics to certify that their employees won't have to assist with any procedure they find objectionable, for example, took the form of a federal rule. So did the administration's decisions to open up new swaths of public land to logging and mining and to raise the allowable level of mercury emissions.
We'd like to see those rules repealed, too, but we decided to stick with EOs for this list because of their consoling simplicity. If they can be conjured by a stroke of the pen, they can also quickly be made to vanish—presidents show little reluctance to excise their predecessors' dictums. Here are our picks for the nine orders most deserving of the presidential eraser come January. We're taking suggestions to round out our list to 10, so please send the executive order you hate most, and the reason you hate it, to JurisprudenceContest@gmail.com.
No. 1: Gutting the Presidential Records Act Executive Order 13233 (PDF)
Nov. 1, 2001
What the order says: With Executive Order 13233, the Bush administration tried to gut the Presidential Records Act, passed in 1978 to make sure that the internal documents of the executive branch are public and generally will become part of the historical record. The 1978 law itself was a compromise in favor of privacy in some respects: Presidential records aren't disclosed for up to 12 years after an administration leaves office, and requests for them are subject to the limits imposed by the Freedom of Information Act, which means that classified documents stay secret. But the Bush order essentially threw out the law's bid for transparency altogether. After stonewalling for months over access to documents from the Reagan era, former Attorney General Alberto Gonzales drafted an order that gives a sitting president, or the president whose records are being requested, the power to review a documents request, with no time limit. If either president says no, you have to sue to get the records.
Why it should go: The American Historical Association hates this order for good reason: It puts a president's interest in secrecy—to prevent embarrassment, inconvenient revelations, whatever—over the public's interest in understanding past events of national import. In 2007, a federal judge struck down part of EO 13233 for conflicting with the Presidential Records Act—which trumps a presidential order, since it's a law enacted by Congress. But parts of the order remain in effect, and a bill in Congress to scrap the whole thing has stalled. The next president shouldn't wait for the judiciary or the legislature: He should throw out this order on his own, as proof that a dozen years after he leaves office, he won't be afraid of an inside view of his White House.
No. 2: Blocking Stem-Cell Research Executive Order 13435 (PDF) June 20, 2007
What the order says: In August 2001, Bush issued a rule limiting federal funding for embryonic-stem-cell research to existing colonies of such cells. Five years later, he expended the first veto of his presidency to reject legislation served up by a Republican Congress to ease those restrictions. This subsequent executive order a year later, issued the same day he vetoed the legislation a second time, encourages research into alternative measures of creating pluripotent stem cells. The order directs the Department of Health and Human Services and the National Institutes of Health to prioritize research consistent with Bush's previous directives and devote resources to finding other means of creating human stem cells.
Why it should go: Supporting alternative means of creating stem cells is a fine idea—just not at the expense of supporting the more immediately available source of stem cells, which are among the most promising lines of medical research today. There is certainly hope that the debate over whether to destroy human embryos to collect these valuable one-size-fits-all cells will eventually be moot. Researchers have found ways to turn back the clock on adult skin cells, reprogramming them as embryonic cells. But this is a tricky process that involves inserting new genes, and it's not yet a sufficient alternative to embryonic stem cells. In the meantime, Bush's order is diverting funds even from research that could eventually sidestep his ethical concerns; scientists have successfully harvested bone fide stem cells without harming the nascent embryo. Both McCain and Obama supported the legislation that would have loosened Bush's research restrictions when it came before the Senate in 2006 and 2007. While some supporters of embryonic-stem-cell research have questioned McCain's resolve, his campaign says his position is unchanged. This order should go no matter who is elected.
No. 3: Finessing the Geneva Conventions Executive Order 13440 (PDF) July 20, 2007
What the order says: After the Supreme Court pushed back against the Bush administration's efforts to hold the Guantanamo detainees indefinitely and without charges, doubts arose about the legality of the CIA's use of coercive interrogation techniques (or torture, if you think water-boarding amounts to that). For a time, the CIA's interrogation squeeze was on hold. Then Bush issued Executive Order 13440, and the interrogators started rolling again. The order isn't explicit about which practices it allows—that remains classified—but it may still sidestep the protections in the Geneva Convention against humiliating and degrading treatment. According to the New York Times, water-boarding is off-limits, but sleep deprivation may not be, and exposure to extreme heat and cold is allowed.
Why it should go: EO 13440 looks like an improvement on previous directives to the CIA, like the memos from the Justice Department written by John Yoo, which narrowly defined torture and Geneva's protections. (According to Barton Gellman's new book about Cheney, the only technique Yoo rejected on legal grounds was burying a detainee alive.) Still, the executive order leaves the door open to techniques that the United States would not want used against its own soldiers and so is part of the Bush administration detritus that has damaged the United States' moral authority abroad. The administration's record is so tarnished on this score that the next president should declare that he is scrapping this order, so he can start over and come up with his own policy on interrogation and the CIA.
No. 4: Handing the Keys to the Vice President Executive Order 13292 (PDF) March 25, 2003
What the order says: In 1995, then-President Bill Clinton issued an executive order that made it easier to declassify documents, and hundreds of millions of pages of information about the White House tumbled forth. In 2003, the Bush administration took another tack, amending Clinton's order to get the vice president into the business of classifying whatever he wants. Executive Order 13292 gives the vice president the same power to classify documents that the president has.
Why it should go: EO 13292 is a twofer: It both expands the scope of secrecy and the powers of the vice presidency. As Byron York argues in the National Review, "Since the beginning of the administration, Dick Cheney has favored measures allowing the executive branch to keep more things secret. And in March 2003, the president gave him the authority to do it." This is reminiscent of Cheney's efforts to prevent the National Archives and Records Administration from enforcing the rules that govern classified information as they pertain to the vice president. Cheney is famous for wanting his office to be a closed box. Executive Order 13292 looks like it was written expressly for him. We hope that the next vice president won't also want to keep secrets to this extent. But the boss should eliminate this worry by revoking this order.
No. 5: Free Rein in Iraq Executive Order 13303 (PDF) May 28, 2003
What the order says: Issued two months after the invasion of Iraq, this order offers broad legal protection for U.S. corporations dealing in Iraqi oil. Bush's directive, justified as a means of protecting Iraqi oil profits, nullifies any sort of judicial proceedings relating to either Iraqi petroleum or the newly created Development Fund for Iraq. The executive order also declares a national emergency to deal with the threat to a peaceful reconstruction of Iraq, which Bush has renewed every year since, most recently in May 2008.
Why it should go: This directive is the foundation for all of Bush's subsequent executive orders on Iraq (see No. 6, below), so it's the logical place to begin rolling back abuses of authority relating to the war. Given the many concerns over cronyism and waste by U.S. contractors in Iraq, revoking their blanket legal protection when oil is on the table is justified. Watchdog groups originally feared that the order could be used to prevent people with tort claims from suing corporations working in Iraq. That hasn't come to pass so far—Tom Devine, the legal director at the Government Accountability Project, says he has not seen the order applied in any legal case. Still, given that the United States will probably be in Iraq for at least 16 months after the next president takes office, it's not too late to inject a little accountability into the contracting. As the Government Accountability Project wrote at the time, "The scope of the EO's mandate for lawlessness is limited only by the imagination." The order is also overkill; the U.N. resolution that passed concurrently with it, which was hailed as a major diplomatic victory for the United States and Britain at the time, contains more limited legal immunity for oil-related commerce in Iraq.
No. 6: Going After Troublemakers in Iraq Executive Order 13438 (PDF) July 17, 2007
What the order says: This order grants the administration the power to freeze the assets of an abstract but broadly defined group of people who threaten the stability of Iraq. The list of targeted people includes anyone who has propagated (or helped to propagate) violence in Iraq in an effort to destabilize the reconstruction. Most ominously, it also applies to anyone who poses a "significant risk of committing" a future act of violence to that end. The order, which applies to anyone in the United States or in U.S. control abroad, also declares, "Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited." The order appears to acknowledge that it could conflict with constitutional protections but then states that targets of its provisions do not need to be notified ahead of time that their assets will be frozen.
Why it should go: The Fifth Amendment has a few interesting things to say about the seizure of property without due process—namely, you can't do it. While this is far from the first time the Bush administration has trampled constitutional rights in the name of national security, this order, if broadly interpreted, could target war protesters in the United States. Then-White House spokesman Tony Snow said at the time that it was intended to target terrorists and insurgents, but the language of the order is vaguer. This EO drew condemnation from all ideological directions, from Swift-boater Jerome Corsi to the ACLU. One needn't be a civil libertarian to see the danger of the order's loose definitions or wonder why we needed the order in the first place. Bonus: The next month, Bush issued a similar order targeting mischief-makers in Lebanon and their supporters. That one can go, too.
No. 7: Eyes and Ears in the Agencies Executive Order 13422 (PDF) Jan. 18, 2007
What the order says: Recent presidents have gone back and forth over how much control the White House should exert over writing federal regulations, particularly in contested areas like environmental policy. Unsurprisingly, Bush came down on the side of strong White House influence. This order mandates the designation of a presidential appointee in each federal agency as "regulatory policy officer," with authority to oversee the rule-making process. This largely revises Bill Clinton's 1993 executive order granting agencies more regulatory independence from the White House (which nullified two of Reagan's executive orders). Defenders contend that it is important for the administration to be able to balance regulatory policy with business and economic concerns. Why it should go: The Bush administration has shown no qualms about interfering with federal regulations normally left to civil servants, particularly on environmental fronts like ozone limits, as Democrats like Rep. Henry Waxman, the chairman of the Committee on Oversight and Government Reform, have pointed out. Repealing the order would be a step toward scrubbing the agencies of the stench of political tampering. The next president shouldn't mix political appointees with civil servants from the inception of the regulatory process by requiring a company man in each agency to supervise.
No. 8: Letting Religious Groups Call the Hiring Shots Executive Order 13279 (PDF) Dec. 12, 2002
What the order says: Adding to the pair of 2001 executive orders that encouraged religious groups to apply for federal money for social services, Bush's December 2002 order made it easier for churches and synagogues to take the money by letting them skirt certain anti-discrimination laws. Because of this order, the faith-based groups can take federal funds while refusing to hire people who aren't of the faith the groups espouse.
Why it should go: As Timothy Noah pointed out in Slate at the time, this seems sensible enough at first: "Why shouldn't government-funded religious charities be allowed to favor members of their own religion when hiring, firing, and promoting?" But there are a couple of problems here. The first is that the groups get to define for themselves who counts as a good Baptist or a good Jew—and what if they decide someone is out because he or she is gay, for example? The second problem is that it's not really clear why Catholic charities should be able to hire only Catholics to serve meals to the homeless, if that work is being funded by the government. In a debate on The NewsHour With Jim Lehrer, Christopher Anders of the ACLU framed the order this way: "What this is about is creating a special right for some organizations that don't want to comply with the civil rights protections." James Towey, then director of the White House Office of Faith-Based and Community Initiatives, said, "The question is, 'Do they lose right to hire according to religious beliefs when they take federal money?' " Either way you frame it, the order is a bad idea. Both John McCain and Barack Obama have pledged to continue federal funding of faith-based programs, but Obama has promised that groups taking the money won't be able to make social-services hires on the basis of religion.
No. 9: The Alternative-Fuel Fix-All Executive Order 13423 (PDF) Jan. 26, 2007
What the order says: Shortly after his 2007 State of the Union address, in which he devoted significant time to environmental proposals, Bush signed Executive Order 13423. Among other things, the order requires federal agencies to cut petroleum-based-fuel usage by 2 percent annually through 2015 while increasing alternative-fuel use by 10 percent each year. The order also requires agencies to reduce overall energy consumption and purchase more hybrid vehicles.
Why it should go: On the face of it, Bush's directive seems like a step in the right direction. Officials in California, however, were quick to question the policy's ecological bottom line. Producing alternative fuels, they argued, can result in a large spike in greenhouse-gas emissions, particularly when harvesting resources like oil shale and coal. There's also doubt that the alternative-fuel industry simply has the capacity to meet the order's requirements. As the Washington Post editorialized, "Where might 20 billion alternative-fuel gallons come from?" To complicate matters, the Supreme Court ruled two months later that the Environmental Protection Agency does have the authority to regulate greenhouse gases under the Clean Air Act, prompting Bush to issue another executive order directing several agencies to draft guidelines for reducing emissions from cars and trucks. The sound, responsible energy policy that should be at the top of the list for the next president—and Congress—will need realistic goals and a big-picture understanding of costs and benefits of alternative fuels.
Update, Oct. 3, 2008
Last week, Slate compiled the nine most odious executive orders issued by George W. Bush that the next administration should overturn and asked readers to supply the 10th. Of the submissions, the most popular by far was National Security Presidential Directive 51, the Bush administration's plan for keeping the government functional in the case of a catastrophic crisis. The policy is not technically an executive order, but we'll allow it. The national-security presidential directive is a close-enough cousin and highly worthy of revocation.
What the order says: The public part ofNSPD-51 grants broad authority to the president in a time of emergency, explicitly stating, "The President shall lead the activities of the Federal Government for ensuring constitutional government." The rest of the order is fairly bureaucratic, appointing a national continuity coordinator and directing agency heads to develop their own plans.
But that's not all. Not only has the White House classified most of the annexes to the directive, it has refused to show them to the members of Congress on relevant committees. As the Oregonian reported, the White House stonewalled efforts by Rep. Peter DeFazio, an Oregon Democrat and member of the homeland-security committee, to gain access to the classified parts of the directive.
Why it should go: A partly classified plan for national emergencies only fuels the sense of foreboding that the White House has staked out wider and wider powers under the guise of national security. As Ron Rosenbaum wrote in Slate when the directive was released, the secrecy gives rise to all sorts of fears about plans for succession that set aside those provided for in the Constitution, of the sort that Ronald Reagan supposedly put in place. To be sure, cataclysmic emergencies may call for strong, centralized leadership in their immediate aftermath. But any responsible policy for such a scenario should be both transparent and short-lived, focused on the speedy restoration of checks and balances on executive power.