Executive orders may seem like an attractive option in the face of Congressional obstruction, but they come at a cost because they are easily reversed by new presidents. The fate of the Presidential Records Act of 1978 is an example of how presidents can modify laws. The 1978 law declared all records of former presidents as the property of the federal government, to be made public 12 years after they left office. When George W. Bush became president, he signed Executive Order 13233, restricting access to presidential records with military, diplomatic, national security, or other sensitive information. The order was later revoked by Barack Obama’s Executive Order 13489. The treatment of enemy combatants is another example. In November 2001, President George W. Bush signed an executive military order titled the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, which mandated the detention and trial of enemy combatants by military commissions, including at Guantanamo Bay. In January of 2009, President Barack Obama signed an executive order, calling for a review of all prisoners held in Guantanamo Bay with the goal of closing the prison within a year. The deadline was not met. In January 2018, President Trump signed his own executive order to keep the prison open indefinitely. For the 6,158 executive orders issued between 1946 and 2013, one quarter (25%) were revoked, and another 26 percent amended or superseded, often within five to ten years of being issued. By contrast, only nine percent of 961 laws enacted by Congress between 1877 and 2012 were repealed. The difference in outcomes is natural: it is difficult to convince enough members of both houses of Congress to support a repeal rather than work on other legislation, whereas a determined president can act at any time.
Excepted from Trust and The Presidency, Part 5 of 7.
Image: President Obama reverses President George W. Bush’s giving ex-presidents and their heirs broad authority to stop release of White House records.