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.