Little government secrets are normally secret, particularly so early in an administration. But the Donald Trump administration is doing something its predecessors have never done: it is making decisions about information — and how to react to that information — in full public view. In September, the administration published its plans for rolling back regulations: more than 100 pages long, the report was written in colloquial language, and included links to many of the regulations themselves. As a result, every news organization had to respond in the days that followed.
The most intriguing part of the report lay in the chapter containing information about possible new regulations. The one that prompted the most commotion was a proposed rule that would ban doctors from asking patients whether they have guns in their homes. As The New York Times reported, the Trump administration had given no explicit assurances that its actual rules would be identical to its proposed regulations. But the final rules were much more restrictive: Doctors could inquire about gun ownership only in response to a patient’s visit to the doctor.
That privacy proposal is extraordinary not only because it is so broad, and so poorly crafted, but also because it was published in full, to everyone’s embarrassment. Several commentators expressed their frustration at a “procedural and historic” violation of the First Amendment. In their words, the White House violated “the internal traditions that have characterized government policy on protecting the confidentiality of communications between the executive branch and Congress, and between elected officials and their constituents, since the American Founding.”
It’s hard to know for sure which opinion predominated — but it may be worth reflecting on what those comments, by those commentators who usually have nothing good to say about any policy, really mean. One wonders whether these commentators are suggesting that such data should be secret, or whether they are saying that rules about protecting personal privacy are private, so should not be published to the public. Or perhaps these commentators want nothing more than a constitutional right to privacy; whatever it is, it clearly came out of Article I, Section 9, Clause 8 of the Constitution, the constitutional language stipulating the independence of the legislature, which is supposed to be at least as independent as the executive branch.
Our concern is not just that the Trump administration violated the law. It is important that Americans start to ask important questions about what kind of government we have, and whether policies that are written in a transparent way can end up having the kind of impact that advocates for transparency claim.