The United States Senate killed the Cybersecurity Act on Monday, August 6, 2012, and once again, a frustrated President Obama is considering another executive order to bypass the will of the Congress. In what is shaping up to be a battle between Democrats and Republicans, U.S. Senator Dianne Feinstein (D-Calif.), one of the co-sponsors of the Cybersecurity Act, indicated that she would not object to Obama issuing an executive order to replace the failed legislation. When asked if she would back an executive order, the Senator replied, “I suppose if we can’t, the answer would be yes.”
The Senate version of the Cybersecurity Act was introduced by Senators Joe Lieberman (I-Conn.) and Susan Collins (R-Maine). The bill would have encouraged private companies and the government to share information about cyber threats and would have set standards for critical infrastructure operators. Senate Republicans, led By Senator John McCain (R-Ariz.), were concerned that the bill was not only burdensome on businesses but contained ineffective solutions to America’s acknowledged cybersecurity problems. Even the bills co-sponsor, Senator Susan Collins is opposed to an executive order, saying, “I’m not for doing by executive order what should be done by legislation.”
The White House does not have any such trepidation about issuing another executive order. The recent use of an executive order to counter the failure of the Dream Act has changed the immigration status of hundreds of thousands of illegal aliens and greatly angered the Republican Party, along with a large percentage of American voters. Critics were none too thrilled when Obama gave himself an Internet kill switch with another executive order on July 12, 2012; causing great concern among free speech advocates and supporters of an open internet.
Press Secretary Jay Collins made it clear that Obama was considering an executive order on cybersecurity, in an email that was made public on Monday: “In the wake of Congressional inaction and Republican stall tactics, unfortunately, we will continue to be hamstrung by outdated and inadequate statutory authorities that the legislation would have fixed. 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.”
Communications experts, government officials and the President have been quite outspoken in recent months about the threats to the nation’s highly vulnerable cybersecurity infrastructure. The President even took the highly unusual step of writing an op-ed for The Wall Street Journal that appeared on July 19, 2012. In the op-ed, Obama demanded that Congress pass the Cybersecurity Act of 2012. The White House has also sent officials to testify at 17 congressional hearings and presented more than 100 briefings on the issue.
America’s vast array of critical computers that control banks, water systems, electrical grids, hospitals, military installations, transportation networks and many other vital components of everyday life, are thought to be at serious risk from solar flares and hackers. Particular concern has been voiced about the possibility of an EMP (Electro Magnetic Pulse) attack from Iran or North Korea that could completely cripple the United States. By detonating a nuclear warhead in the atmosphere, high above the Continental United States, a hostile foreign power or a terrorist group could devastate the vast network of computers that runs most of America. It is estimated that a successful EMP attack could kill up to 90 percent of the population of the United States within 18 months, due to disease and starvation.
There is no argument that cybersecurity is an important concern that must be addressed. The issue here is how our government can best function under our constitutional system of checks and balances. Republicans are adamant that it is the responsibility of the United States Congress to write the laws. The President, on the other hand, has been more than willing to use an executive order when he doesn’t get the legislation he wants.
Democrats and the Obama administration have been accused of acting as if they find the Constitution to be an inconvenient obstacle. Mr. Obama has often resorted to executive order, using the slogan, “We can’t wait,” to justify bypassing Congress. This is one political argument that is sure to get continue, especially considering the trend among the last few American presidents to use executive orders more and more frequently. While believers in a strict interpretation of the Constitution scream bloody murder, executive orders have certainly become a major tool in a president’s arsenal to deal with an uncooperative Congress.