Sunshine Week: Why Law Must Be Public
When the government conceals the rules that control our everyday lives, it harms all Americans.
By Chris Swartz
In Babylon, King Hammurabi etched 282 laws into a pillar of basalt that stood seven feet high. On Mount Sinai, Moses returned to the fleeing Israelites with the stone Tablets of the Covenant, inscribed with the Ten Commandments. One of the oldest extant legal codes, the Code of Lipit-Ishtar, was carved into a stele of diorite that was publicly displayed in the ancient Sumerian city of Nippur.
Each of these codes, some of the earliest existing laws, share an important quality: Their very form was designed with public access and viewing in mind.
As we close out this year’s Sunshine Week, it is worth thinking about the importance of law being public.
In the United States, the public availability of the law is taken for granted. The “Charters of Freedom” — the Declaration of Independence, the Constitution, and the Bill of Rights — are displayed in the museum of the National Archives. Copies of federal court cases are accessible from at least as far back as 1790. And the public laws of the country, going back to the First Congress, are available in painstaking detail on the website of the Library of Congress.
Most Americans would agree with the oft-recited Thomas More quote from A Man for All Seasons that the nation is “planted thick with laws.” Few would, however, likely stop to ask themselves whether and to what extent the laws, rules, and regulations of the federal government are truly open and public — and to what extent they are hidden.
It is assumed that the rules that dictate our lives will be accessible, even if they are often opaque to the everyday person. As the D.C. Circuit recently explained in a case upholding the common law right of public access to judicial records, there exists an “antipathy [in our] democratic country to the notion of ‘secret law,’ inaccessible to those who are governed by that law.”
This antipathy is well deserved. The right to access government records — and particularly those that bear the weight of the law — is foundational to the rule of law. While true in any country, it is doubly so in a country where sovereignty is reserved to the people and only exercised by representatives through the terms of a social compact.
The executive branch of our federal government, unfortunately, has at times found itself seeking to avoid transparency. Occasionally, the motivations for secrecy are benevolent. As often, if not more, they are not. But no administration has displayed so pure an allergy to transparency as Donald Trump’s.
This may come as a surprise. Not only because Trump has called his administration the “most transparent” in history but also because Trump and his appointees seem to produce endless reams and reams of social media posts, speeches, TV appearances, and tax-payer funded advertisements.
Yet, at its heart, this performative transparency is as artificial as halogen lights compared to sunshine. While the president and his team engage in the pantomime of openness — casting shadows on the walls of the proverbial cave — they are seeking to hide truly important information from the public.
For example, if it were not for a whistleblower report, the public would not have known that Immigration and Customs Enforcement issued an internal memo purporting to erase their Fourth Amendment guarantee to freedom from search and seizure of their homes absent a judicial warrant. Instead, ICE’s memo concludes that ICE can provide its own warrants. As others, including the Brennan Center, have pointed out, the memo is sorely lacking from a legal perspective. The memo not only effectively rewrote the law of when ICE could enter citizens’ homes but, more troubling, it was hidden for months.
Another example: In early 2025, a majority of federal agencies, acting pursuant to directions from the Office of Management and Budget and coercion by the Department of Government Efficiency, began planning to remove civil servants en masse and to reorganize offices without congressional approval. Those plans, which affected the livelihoods of not only government workers but also the constituents they serve, were originally hidden. Were it not for litigation, including by federal employee unions, it is unclear when and if those plans would have ever been released.
More recently, Democracy Defenders Fund has been seeking records for the legal basis of the country’s illegal attacks in Venezuela and the Caribbean and Eastern Pacific and the administration’s unauthorized war in Iran from the Department of Justice’s Office of Legal Counsel. The Office of Legal Counsel plays an outsized role in the affairs of the executive branch. As the office itself notes, its opinions are “controlling on questions of law within the Executive Branch.” That means that, absent further action, its opinions are the law for the more than 2 million public servants in the federal government. Unfortunately, withholding the justification for many of these attacks — which have collectively resulted in the deaths of thousands of people (including American soldiers) and have thrown the global economy into disarray — is just another example of OLC’s well-documented policy of creating secret law.
These examples are but a few showing the real harm that exists when the government arbitrarily creates and conceals the rules and regulations that control our everyday lives.
Americans, however, are not now (nor have they ever been) merely bystanders in the fight for transparency. Sunshine Week was established, in part, to remind Americans of the promise of a system of law that is open, public, and available to all who seek it out. It also reminds us that sunlight is not just, as Justice Louis Brandeis once said, “the best of disinfectants” for hidden evils. It is a fundamental aspect of a self-governing people.
Steps can and should be taken to counteract the administration’s attempts to create law and precedent in the dark. That includes passing real reforms to make open records the default and to give requesters more powerful tools to force the government to hand over such records. It means prohibiting the creation of law through secret bureaucratic memos. And it means requiring the Office of Legal Counsel to disclose its opinions to the public.
Not every law in the country will fit on the stele that contained the Code of Hammurabi, the stones that make up the Tablets of the Covenant, or in the argon-filled preservation cases where the Constitution resides in the National Archives. But every law, every decision, every action that affects the legal rights and responsibilities of Americans should be public and transparent.
Chris Swartz is senior ethics Counsel at Democracy Defenders Fund. He previously held several positions with the federal government, most recently serving as acting chief of the Ethics Law and Policy Branch at the U.S. Office of Government Ethics.
When you know you are doing something wrong, you have to keep it secret, of course. The orange dumpster doesn't care or know any better, but I hope all these shysters "advising" him will be reckoned with on a grand scale by bar associations everywhere come January 2029.