Wanna Know a Secret (Law)?

by Sean Gonsalves

Once upon a time, a team of federal attorneys went before the Supreme Court only to discover that their entire case was based on a revoked executive order and therefore moot.

True story. Look it up. Panama Refining Company v. Ryan. The revoked presidential order was understandably missed by the attorneys. The revocation had never been made public — an example of what legal scholars refer to as “secret law.”

In the ’30s and ’40s, Congress penned legislation aimed at bringing order to the dissemination of vital government information, amid the chaotic complexity of state administrative laws and downright shoddy record-keeping. Congress also established statutes to keep a growing body of secret law in check.