Secret Laws

SECRET LAWS….Do we have secret laws in America? Apparently we do, as I wrote incredulously on Saturday. We actually have federal statutes that no one is allowed to know about.

Am I a rube for not knowing about this? And for being astonished that such a thing is possible? Maybe, but Bruce Bartlett, who has far more experience with the highways and byways of Washington DC than I do, tells me via email that he too was taken aback when he first found out about secret laws:

I first heard about secret laws some years ago when I worked at the White House. One of the White House lawyers told me he had been ordered to make some alien a U.S. citizen ASAP ? not just give him a green card, but grant him citizenship. I don?t recall the details of why. Anyway, the lawyer said that short of going through the usual drill, only Congress could grant citizenship. But for some reason the White House chief of staff was hot on this matter and told the lawyer that he had better find a way or start cleaning out his office.

It was then that the lawyer discovered these secret laws. He told me that there is a whole U.S. Code section that is simply blank for this reason. He said most of these laws had been passed during World War II. Apparently, one gave the president the authority to grant citizenship under certain circumstances that, thankfully for the lawyer, applied in this case. So my lawyer friend was able to keep his job. Weird.

I would just like to say ? calmly for now ? that I don’t think this is right. If someone can explain to me why it is right, I’m all ears.

UPDATE: Responding to my original post, Orin Kerr points out that the secret TSA “law” in question is actually a secret regulation. I’m not sure this is really any better, and might actually be worse, since I imagine it’s a lot easier to promulgate a secret regulation than to pass a secret law.

In any case, apparently we have both secret regulations and secret laws. This does not help me to sleep easily at night.