Somewhat lost in the flurry of presidential orders of the last few days is this one, revoking Bush’s executive order allowing incumbent presidents and ex-presidents to exercise absolute control over access to their records held in the National Archives. Bush’s order went so far as to allow a president to exercise control from beyond the grave:
The former President may designate a representative (or series or group of alternative representatives, as the former President in his discretion may determine) to act on his behalf for purposes of the Presidential Records Act and this order. Upon the death or disability of a former President, the former President’s designated representative shall act on his behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges. In the absence of any designated representative after the former President’s death or disability, the family of the former President may designate a representative (or series or group of alternative representatives, as they in their discretion may determine) to act on the former President’s behalf for purposes of the Act and this order, including with respect to the assertion of constitutionally based privileges.
Bush’s order allowed either an ex-president’s wishes to control, even where the incumbent president disagreed, though it allowed the incumbent president to veto an ex-president’s decision to allow access. The order took a statute, the intent of which was to broaden access to presidential records, and “amended” it to make non-disclosure the default.
You may remember from civics class that in this country laws are allegedly made by Congress, but in this case, as in many others, Bush transmuted the executive order into a legislative instrument.
As with so many of Bush’s power grabs, this was done in a way that made it very difficult to challenge in court. According to wikipedia, a lawsuit challenging Bush’s action was partly successful, in that one provision was struck down, but the rest of the case was dismissed for lack of ripeness, meaning that the plaintiff could not establish that abuses had yet taken place.
Obama’s order allows a former president to assert a privilege, but essentially allows the Archivist of the United States to overrule the former president, and the incumbent president to overrule the Archivist. Dead presidents need not apply.
Bush’s order was a two-fer. It violated the constitutional separation of powers and it struck at the heart of open government. What is so heartening about this act on Obama’s part is that it was not something on everyone’s radar. Had he done nothing no one would have noticed. It’s a sign that he’s serious about getting back to constitutional first principles.
Now, if only he’d go back to his original position on wiretaps.
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