The Obama Administration will consider an executive order on cybersecurity in the wake of a defeat in the Senate on a bill to deal with the issue. This is another example of the executive branch taking action when the legislative branch bogs down in gridlock. The result is a stronger executive and an increasingly irrelevant Congress.
The White House hasn’t ruled out issuing an executive order to strengthen the nation’s defenses against cyber attacks if Congress refuses to act.
“In the wake of Congressional inaction and Republican stall tactics, unfortunately, we will continue to be hamstrung by outdated and inadequate statutory authorities that the legislation would have fixed,” White House Press Secretary Jay Carney said in an emailed response to whether the president is considering a cybersecurity order.
“Moving forward, the President is determined to do absolutely everything we can to better protect our nation against today’s cyber threats and we will do that,” Carney said.
Carney did not bother to elucidate the authority on which Obama would enact cybersecurity regulations. The executive has clear authority in areas like housing, where the executive branch has already-appropriated funds through TARP and executive agencies like the FHA hold the underlying mortgages (incidentally, the FHA isn’t exactly leaping to reduce principal on mortgages themselves). I don’t know if the FCC would be able to regulate against cyber attacks, or the Department of Homeland Security, or even the Nuclear Regulatory Commission in the case of nuclear facilities. But this could just add on to existing regulations on critical infrastructure providers, and I’m sure the executive branch will somehow find a way, as they did with No Child Left Behind waivers and changes to student loan rules and deferred action on DREAM-eligible immigrants. And nobody is likely to raise much of an objection beyond a stage whisper.
Sen. Dianne Feinstein (D-Calif.), one of the main co-sponsors of the Cybersecurity Act, said she prefers that Congress address the problem, but she is open to presidential action if Congress fails.
“I suppose if we can’t, the answer would be yes,” she said when asked whether she would support an executive order.
We’re really talking here about a breakdown of democracy. I’m not a big fan of the cybersecurity bill because it uses that threat of cyber attacks as a back door to information sharing of private communications. In this instance, executive action would be preferable, since it would probably only lead to the core goal of increased standards for critical infrastructure facilities to guard against cyber attacks. But this is really no way to run a democracy, where the executive branch has to end-run around Congress because they find themselves unable to get anything done. It damages democratic accountability. These end runs don’t deal with the core problem of unnecessary and unworkable supermajority requirements in the Senate. That’s where an executive branch that wants the American system to work needs to target.