January 31, 2023

Does Policy Dictate Law or Law Dictate Policy

Pretend for a moment that the United States, in which we live, is governed by a constitution; one in which most Americans have been taught actually exists and once existed. Now that that is straight, consider.

It was recently announced, quietly, that the White House Office of Administration and the Executive Office, were formally placing in the Federal Register a “Final Rule” that would exempt those offices from the Freedom of Information Access Act (FOIA) law. The Summary reads:<<<All of it HERE>>>

SUMMARY: The Executive Office of the President, Office of Administration, is removing regulations from the Code of Federal Regulations related to the status of records created and maintained by the Executive Office of the President. This action is being taken in order to align Office of Administration policy with well-settled legal interpretations of the Office of Administration’s status under Federal law and Executive Orders, including the Freedom of Information Act, the Privacy Act of 1974, and Executive Order 13526. The Office of Administration, as an entity whose sole function is to advise and assist the President of the United States, is not an agency under the Freedom of Information Act or the Privacy Act of 1974, nor does its implementation of Executive Order 13526 affect members of the public. Accordingly, the provisions of the Code of Federal Regulations to be removed are without legal effect.[emboldening added]

I think what we have here is a good example of how policy dictates law. There was never a “law” that exempted the White House from complying with FOIA. They just didn’t do it. Bush was even bolder and extended his noncompliance. Obama, moreso. The reason? Each president set their own “policy.” The Courts then recognized the “policy” and in certain court rulings made it clear that “policy” was law. Policy and precedent establishes tyrannical law.

To make sure that this “policy,” never debated and acted upon by Congress or the voting public, remained in effect, the White House simply recorded it in the Federal Register…as “settled policy”; I suppose not so much unlike the “settled science” of climate change.

Some people ignore and/or dismiss executive actions and announcements of “policy,” not understanding the ramifications that can follow. Here’s just one example.