Advancing a Free Society

An Anxious Thought on the Executive Order

Tuesday, March 8, 2011

I could pick nits about the President’s Executive Order, but I don’t feel like it. The truth of the matter is that this is pretty good policy. There are minor things I might have done differently, but they pale in comparison to what the administration has gotten right here. On a policy level, this is a win.

My one major gripe with the President’s Executive Order is that it is, well, an Executive Order, not a statute. I know I sound like a broken record on this point. But I see no good reason why this process should not reside in statutory law. And I worry that the President’s failure at the end of the day to–as he so eloquently promised at the National Archive nearly two years ago–”work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution” will make this policy fragile. That is, by marginalizing Congress on this matter, he will spur Congress to impede policy that is essentially sound.

Continue reading Benjamin Wittes at Lawfare