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We'd like to see those rules repealed, too, but we decided to stick with EOs for this list because of their consoling simplicity.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.