Executive Branch Officials Research Articles

Committee on Government Relations

The Executive Committee voted at its January 2009 meeting to establish a new Committee on Government Relations. The Committee was authorized to establish a Washington office for the Association and to hire a part time Washington representative. Katharine Abraham (University of Maryland) was appointed chair of the new committee. The other members are Angus Deaton (AEA president and Princeton), Catherine Eckel (University of Texas–Dallas), Robert Hall (AEA president-elect and Stanford), Robert Moffitt (Johns Hopkins), Charles Plott (California Institute of Technology), Richard Schmalensee (MIT), Charles Schultze (Brookings Institution), and James Smith (Rand Corporation). Rebecca Blank (formerly of the Brookings Institution) served as a member of the Committee until she was confirmed as Undersecretary of Commerce in June 2009. The Committee’s first tasks were to develop a mission statement for the new Washington office and a description of the duties to be performed by the Association’s Washington representative. Both were approved by the Executive Committee at its April 2009 meeting and are posted to the Committee’s new Web site; for reference, copies are attached to this report. The Washington representative is charged primarily with developing information about legislation, regulations and agency decisions pertinent to the scientific interests of the AEA and, working closely with the Committee on Government Relations, to keep members of the Association informed about these developments. On occasion, the Washington representative may be asked to provide informational materials to congressional staff, Members of Congress and Executive Branch officials, but under no circumstances will s/he express any view or take any position in an official capacity that might be construed as partisan. The Washington representative position was advertised in the spring. Roughly 40 applications were received, and a hiring subcommittee interviewed the top few applicants in mid June. Based on the report of the interviewing subcommittee, the full Committee’s consensus choice to fill the position was longtime National Science Foundation program officer Dan Newlon, who retired from the NSF in August. Newlon accepted the offer of a halftime position and began work October 1. A blast e-mail that went out to AEA members in October announced the formation of the Committee and Dan’s appointment as the AEA’s new Washington representative. Dan’s appointment also is noted on the Committee’s Web site. Dan is a very capable person who has the additional advantages of being well known to economists and very familiar with the concerns of the economics profession. We are delighted he has agreed to take on this new role. Since October 1, Newlon has been meeting with representatives of various organizations whose interests overlap with those of the AEA. The Committee has met by phone with Newlon roughly once every two weeks. Much of the time during those meetings has been devoted to defining more clearly the role of the committee and the Washington representative. The Committee has authorized Newlon to move forward with several activities:

An Extraordinary Rendition

Controversy over alleged CIA responsibility for the 1961 assassination of Congolese leader Patrice Lumumba continues to swirl despite a negative finding by the US Senate Church Committee in 1975. A new analysis of declassified and other Church Committee, CIA and State Department documents, memoirs of US and Belgian covert operators, and author interviews with former executive branch and Church Committee officials shows that the CIA Congo Station Chief was an influential participant in the Congo Government's decision to ‘render’ Lumumba to his bitter enemies. Moreover evidence strongly suggests the Station Chief withheld his advance knowledge of Lumumba's fatal transfer from Washington policymakers, who might have blocked it. Flaws in the Church Committee's verdict are traced to CIA delays in providing key cables, staff overreliance on lawyers' methodology, and political pressure to water down original draft conclusions. What happened in Lumumba's case provides insight into the contemporary problem of establishing accountability in US anti-terrorist programs. Current rendition policies are also characterized by ambiguous performance standards for covert operators on the ground and difficulty in pinpointing US responsibility within the intimate relationship between the CIA and foreign government clients. The Church Committee's experience clarifies the conditions for meaningful outside regulation of anti-terrorism operations today.

Congressional Constraints and Tactical Supreme Court Maneuvers: Calling for the Views of the United States Solicitor General

Do United States Supreme Court justices invoke the aid of executive branch officials to help them overcome congressional constraints? We examine archival data collected from the private papers of former Justice Harry A. Blackmun to analyze the conditions under which Supreme Court justices force the Solicitor General to participate in cases. We find that in addition to legal considerations, justices invite the SG to participate in cases so as to gain information that will aid them in determining whether the president will use his veto to protect the Court's decision against congressional override attempts. Justices are between 44% and 56% more likely to invite the SG when they require the president's veto to protect their decisions. These results hold across a host of alternative models of legislative decision making and other various modeling specifications.

Putting the Practice into Theory

Modern criminal procedure, or especially at the Supreme Court level, rests upon a variety of untested regulatory assumptions about the ways in which the police do and ought to interact with the public. These regulatory assumptions depend upon underlying models of police administration that often determine the outcome of cases. Nonetheless, these assumptions are fictional, meaning that they lack any basis in descriptive criminology or social science. Yet they control the development of judicial and academic understandings of what policing is and ought to be about in our modern, fragmented, pluralist democracy. My prescription, at least for the academy, is that we should start examining the criminological evidence to determine whether and how it might support or undermine the Court’s social science speculations. Constitutional law has always been somewhat marginal in the regulatory universe. Executive branch officials control most of what happens in the criminal justice system. They act according to departmental policies or institutional practices. Though they might have one eye on the courts and the Constitution, they are more concerned with norms of professional ethics or institutional organization. Attending to regulation tilts criminal procedure off its court-centered axis and reminds us just how ineffective we legal scholars may be in setting its terms. My goal is to trace some of the ways in which criminal procedure doctrine engages with criminology, particularly in its more hermeneutic form. As a starting point, I consider Robert Weisberg’s and David Sklansky’s very different but deeply thoughtful discussions of the relation between criminal procedure, on the one hand, and criminology and social science, more generally, on the other.

The White House as a Black Box: Oral History and the Problem of Evidence in Presidential Studies

Scholars who study the American presidency usually have to rely on indirect evidence for understanding the internal operations of the ‘black box’ that is a contemporaneous White House. Most of the direct evidence about White House behavior becomes available only after a president has left office, when confidential communications are opened to the public by the presidential libraries. In recent years, however, such direct evidence has become increasingly inaccessible, because of changes in the record-keeping habits of senior executive branch officials and because of the politics of archival release. This article explores the nature and extent of these problems, and how elite oral history interviewing can compensate for them. It further examines the strengths and weaknesses of oral history as a means of learning about the usually hidden workings of the American presidency.

Toward global checks and balances

The rapid growth and importance of intergovernmental coordination in the regulation of markets, transportation and communication, the environment, and national security poses numerous challenges for democratic accountability within participating states. Direct public participation in the intergovernmental regulatory bodies is generally modest or absent. Information regarding their deliberations is limited. And the multiple oversight mechanisms and supervisory processes that exist at the domestic level of developed democracies that can scrutinize intergovernmental regulatory decisions tend to be lacking. This lack of accountability raises legitimacy concerns, the most prominent of which is the fear executive branch officials will delegate controversial policy decisions to intergovernmental bodies in order to escape democratic deliberation. In this paper we survey the ways that different review venues (other international institutions and national courts) are attempting to cope with these accountability related issues: we argue that national courts may prove to be the most effective venue for promoting democratic accountability. This is not because they are more reliably representative of their domestic constituency or possess a more cosmopolitan perspective than the bodies whose decisions they are reviewing. Rather their relative advantage lies in: (1) the increasing acceptance on the part of domestic courts that inter-judicial coordination is a prerequisite for their continued ability to fulfill their judicial review function; and (2) the visibility that the decisions of these courts possess. Acting together these two forces have the potential to foster greater transparency and public deliberation than most rival venues.

Preaching against the Choir

This book is a study of establishment dissenters drawn from “the responsible class” (p. 2), chiefly members of Congress, military officers, cabinet members, and diplomats, who opposed presidential decisions between the Louisiana Purchase and the Korean War. If other scholars have challenged the “consensus school” of diplomatic history by highlighting America's failures instead of its successes, by focusing on nonstate actors, or by changing lenses to emphasize political economy, race, gender, or culture, this study aims to counter the consensus school without rejecting its methodologies. It retains the top-down focus on high politics and famous men, and demonstrates that a study that deliberately restricts itself to an establishment almost entirely composed of propertied DWMs (dead white males) can debunk the notion that there was an unbroken accord over foreign policy and national purpose. Some of the dissenters were cabinet members dissatisfied with the foreign policy of their presidents, from William Seward's effort to strong-arm Abraham Lincoln into war with European powers, through William Jennings Bryan's protest of Woodrow Wilson's tilt towards Great Britain, to Henry Morgenthau's demand that Franklin Roosevelt take action to save persecuted Jews. Most were members of Congress, who permitted themselves more open objections to White House policies than did executive branch officials serving at the pleasure of the president, or military officers subordinated to presidential authority. Strong dissent from administration insiders typically accompanied or followed a resignation—this despite Mayers's remark that dissenters “preferred the exercise of power, its accouterments, and prestige” (p. 326). A few burnished their careers by taking on the president, but most paid a price for their actions.

The Law: Presidential Misuse of the Pardon Power

Before Watergate, presidents were generally reluctant to pardon executive branch officials after their administrations had been investigated by an outside prosecutor. Since Watergate, however, presidents are less reluctant to use clemency for their own personal interest, as demonstrated by controversial clemency decisions involving executive branch officials or cronies made by our most recent three presidents. This practice is contrary to President George Washington's use of the clemency power and later legal precedents, both of which follow the framers' intent that the pardon power be used as an “act of mercy” or for “the public welfare.” When and how presidents began misusing the pardon power, and the resulting consequences, are discussed here.

The Politics of “Entrepreneurial” Economic Development Policy of States in the U.S.

Abstract“Entrepreneurial” economic development strategies at the state level in the United States, which focus on nurturing home‐grown, high‐growth businesses, lack immediate payoffs for politically powerful constituencies, a condition that would seem likely to limit their appeal compared to the alternative “locational” strategy of attracting large investments from elsewhere. Nonetheless, many U.S. states have added programs with entrepreneurial attributes to their economic development portfolios in recent years. This paper explores how the political obstacles to such programs have been overcome. In a few cases, an institutional innovation in the policy‐making process drew in new participants who provided ideas for and support to programs with entrepreneurial attributes. More commonly, the preferences of executive branch officials, especially governors, appear to have been critical to the enactment and implementation of such programs. This finding suggests that economic development policy making may be more technocratic than is commonly believed.

European Arrest Warrant: Advocaten voor de Wereld VZW v. Leden van de Ministerraad

Listening carefully, one might have heard the sigh of relief breathed in Brussels and other EU capitals on 3 May 2007, when the Court of Justice of the European Communities (ECJ or Court) eventually delivered its first judgment on the European arrest warrant (EAW), giving the green light to this flagship instrument of EU judicial co-operation in criminal matters. However, what came as a relief for executive-branch officials, quite likely disappointed some of Europe's judges and legislators, as well as many academics and independent observers. For them, it must have seemed as if a long, tension-filled story had come to a bitter end.

Congress's contempt power: Three mechanisms for enforcing subpoenas

Since the beginning of the 110th Congress, increased oversight by congressional committees into activities of the President and Executive Branch has sparked renewed interest in both political and legal questions involving the separation of powers. Congressional subpoenas for general information, documents, and testimony from high-ranking executive officials has not only generated significant inter-branch conflict but has also developed into a controversy that could result in a legal standoff between Congress and the President. Congress's ability to obtain access to information, whether in the form of documents or testimony, from the Executive is primarily enforced through political negotiation and accommodation that generally take place outside of public view. Contempt may be used by Congress to coerce compliance, punish the contemnor, and/or remove the obstruction. This paper focuses on Congress's contempt power and congressional authority to enforce its requests for information, documents, and testimony from both private individuals and the Executive Branch. First, it examines the source of Congress's contempt power. Next, it discusses and analyzes the procedures associated with each of the three different types of contempt proceedings—inherent contempt, statutory criminal contempt, and statutory civil contempt. Finally, this paper concludes by addressing several of the unique constitutional, legal, and political problems that are associated with congressional contempt proceedings against Executive Branch officials.

Written Statement of Professor Douglas A. Berman before the U.S. House of Representatives Judiciary Committee on "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials"

Written Statement of Professor Douglas A. Berman before the U.S. House of Representatives Judiciary Committee on "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials"

Statement of Thomas Cochran, Esq. before the U.S. House of Representatives Judiciary Committee on "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials"

Statement of Thomas Cochran, Esq. before the U.S. House of Representatives Judiciary Committee on "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials"

The Church Committee and a new era of intelligence oversight

Thirty years ago, the Church Committee completed what was and still is the most exhaustive look at any government's secret intelligence agencies. The Committee showed that in times of crisis, even constitutional democracies are likely to violate their laws and forget their values. In this reflection, the Committee's Chief Counsel states that by examining the full record over time, the Committee found that it was insufficient to blame abuses solely on intelligence agencies. Ultimate responsibility was properly fixed with the presidents, attorneys general, and other high executive branch officials. Seven general lessons, including the danger of excess secrecy, are drawn from his experience. These lessons are valuable for the present struggle with terrorism.

Foreign Terrorist Organizations and the Listing Process in a Post-9/11 Context

There are many counterterrorism tools at the disposal of the U.S. government. Yet, as with many of the quivers in the foreign policy arsenal, the proof of policy efficacy lies in follow-through, consistency, or oversight and more basic than connecting dots on assumptions developed on collected and analyzed data. It has to do with policy-makers and executive branch officials implementing and following the legal parameters established through the rigorous legislative and administrative processes that our federal system does so well and that the courts uphold. This paper reviews a policy tool in the counterterrorism effort: the targeting, identification, and listing of individuals and groups involved, or suspected of involvement, in terror-related activities. It advances that the listing process is an important legal and symbolic tool in the war effort that must be enhanced to better deal with post-9/11/01 realities. As a result of the seemingly disheveled process with regards to the MEK and its ancillary organizations, it appears that the matter might once again be headed to our federal courts. The question will probably posed shall be: How can the MEK and ancillary organizations remain on the FTO list if it has been under DoD protection since 2003? While there could be colorable due process arguments raised with regards to U.S. citizens in the camps, and there are a few Americans in those camps, the suit could once again afford an FTO a forum to raise issues against a state sponsor of terror, Iran. This gives a new meaning to the enemy of my enemy is my friend (MEK v. Iran equals good for U.S. interests?). The country has entered a phase of more acute conflict and engagement as the U.S. takes necessary efforts to hold state and non-state actors accountable for acts of terror and prevent and minimize the impact of future attacks. The federal government needs to organize itself and enforce a structure that is responsive to our needs today and beyond. A robust listing process should be part of the regime as it is an important legal and symbolic tool in the war effort that must be enhanced to better deal with post-9/11/01 realities.

The Constitutionality of the NSA Surveillance Program: A Letter to the House Judiciary Committee

Following the December 2005 disclosure by the New York Times of a highly-classified National Security Agency surveillance program that was authorized by President Bush shortly after the September 11, 2001 terrorist attacks on the United States, there has been a great national debate, both scholarly and popular, about the legality of the program. Opponents claim that it violates the FISA statute's requirement that executive branch officials first obtain a warrant before conducting surveillance on enemy communications that originate or terminate in the United States itself. They also claim that, even if FISA statute was implicitly amended by the post-9/11 Authorization for the Use of Military Force (AUMF), the program violates the 4th Amendment's prohibition against unreasonable searches. Defenders of the program argue that the program was authorized by Congress's AUMF; that even if not, the FISA statute would be an unconstitutional intrusion on the powers the President has directly from Article II of the Constitution; and finally, that surveillance of enemy communications in time of war is perfectly reasonable and therefore consistent with the 4th Amendment. The Congressional Research Service and the Department of Justice each prepared major legal analyses of the program. CRS found the program unconstitutional, while DOJ found that it was perfectly constitutional. This letter/article, prepared at the request of the U.S. House of Representatives Judiciary Committee, reviews the strength of the two arguments and concludes that the Department of Justice legal analysis is more more thorough and much better grounded in the Constitution's text, history, and underlying political theory, as well as better supported by existing precedent.

The Law: Can You Sue the White House? Opening the Door for Separation of Powers Immunity in Cheney v. District Court

There is an old saying, You can't sue city hall. The reference is that the executive is immune from lawsuits, so don't bother with litigation. It will just be a waste of time and resources. Cynics have interpreted executive immunity as an open invitation to secrecy, corruption, and abuse of power. By making executive branch officials immune from court proceedings, critics argue that the Executive becomes above the law (see, e.g., Berger 1974). Over the years, though, legislative bodies have passed numerous laws designed to promote open government and to hold executive officials accountable to the other branches of government and to their constituents. These laws reach all the way to the highest level of government in American society: the White House. (1) Nevertheless, just because Congress wants to hold the president accountable does not necessarily mean that you can take the White House to court. Over the course of the past few decades, creative lawyers in the executive branch have asserted a variety of privileges and immunities to shield America's highest executive officials, the president and vice president of the United States, from both criminal and civil proceedings. The challenges naturally raise important constitutional questions, which the federal courts are often asked to address. (2) So when exactly can you sue the president? In the last three decades, the task of answering this question has ultimately fallen on the United States Supreme Court. Beginning with the rejection of President Richard Nixon's claim of executive privilege to prevent discovery in a criminal proceeding, the Supreme Court has offered some broad parameters for holding the president in check while at the same time preserving the balance between the three branches of the federal government. (3) This year, however, the high court was asked to settle a less clear-cut controversy: can federal courts compel the president or the vice president to disclose documents through discovery to private litigants without violating the separation of powers doctrine? While the Supreme Court failed to provide a definitive answer in Cheney v. District Court, it did indicate that presidents and vice presidents, while not above the law, are certainly entitled to greater deference than anyone else in American society. It also opened the door for executive immunity on the grounds of the separation of powers doctrine. Holding government officials accountable is a vital element of democracy. So, too, is allowing each branch of government to perform its official duties without unnecessary or inappropriate interference from the other branches or the public. In Cheney v. District Court, the Supreme Court hinted where, perhaps, the line between executive accountability and presidential prerogatives might be drawn in legal proceedings against the nation's only two elected executive branch officials: the president and the vice president. This article begins with an overview of the parameters that the Supreme Court has established regarding executive privilege and presidential immunity. (4) The article then proceeds to a discussion of how the Supreme Court recently addressed the current administration's efforts to avoid civil action against the vice president by asserting executive immunity based on the separation of powers doctrine. The article concludes with a brief discussion of the implications of the Court's ruling in Cheney v. District Court. Defining the Parameters of Executive Immunity In 1974, a unanimous Supreme Court recognized that presidents are entitled to executive privilege in certain instances that would shield the executive branch from the demands of the legislative and judicial branches of government. In the same case, however, the Court held that presidents could not escape the due process requirements of a criminal proceeding by invoking executive privilege, unless perhaps state secrets were at risk. …

Budgeting for State Courts: The Perceptions of Key Officials Regarding the Determinants of Budget Success

While much has been made of the financial crisis affecting state courts in the early 2000s, there has been little research on court budgeting and the politics that affect it, especially concerning factors that lead to budgetary success. In this study, we assess the determinants of budget success for state courts by examining the perceptions of key state budget actors. We argue that courts tend to behave conservatively in the budget process and may need to behave more politically. Behaving acquisitively, providing realistic requests, and justifying funding needs will enable courts to increase funding in the short-term. In the long-term, courts should act more aggressively to improve relations with legislative and executive branch officials.

Cutler Retires After Decades Of Shaping MH Legislation

Back to table of contents Previous article Next article Association NewsFull AccessCutler Retires After Decades Of Shaping MH LegislationKen HausmanKen HausmanSearch for more papers by this authorPublished Online:20 Jun 2003https://doi.org/10.1176/pn.38.12.0002Jay B. Cutler, J.D., gets a standing ovation from APA’s Assembly in recognition of his years of advocacy work on behalf of mentally ill people and the psychiatric profession.As a quarter-century of service as APA’s government relations director and chief lobbyist came to a close at the dawn of the new year, Jay B. Cutler, J.D., was able to look back on a legacy of contributions to critical legislation and regulatory changes that improved the lives of people with mental illness.Honored at APA’s recent annual meeting in San Francisco with a Speaker’s Award at the Assembly meeting and a Presidential Commendation at the Convocation, as well as at an earlier Capitol Hill reception, Cutler helped shape legislation on almost every issue that touched on the care and treatment of people with mental illness.Among the most critical of these laws were those concerning insurance parity for psychiatric disorders; patients’ rights; children’s mental health issues such as portrayals of violence on television; and most recently privacy of electronic medical records, including the successful push to ensure special protections for psychotherapy notes.He and his staff have also worked successfully to convince Congress to increase budgets for federal agencies such as the National Institute of Mental Health, Substance Abuse and Mental Health Services Administration, National Institutes of Health, and the health care components of the Department of Veterans Affairs.In the regulatory arena, Cutler was involved in ensuring that the federal government included key mental health care provisions in Medicare and Medicaid rules (including ongoing efforts to have Medicare’s discriminatory mental health care copayment abolished). He was instrumental in expanding Medicare’s coverage for inpatient psychiatric care and then having all discriminatory limits removed. In 1982 he and his staff worked along with several APA members to convince the Health Care Financing Administration to exempt inpatient psychiatric care from its newly developed payment system based on diagnosis-related groupings.In addition, he led a successful effort to convince the Department of Defense to shut down its controversial experiment to train clinical psychologists to prescribe psychoactive drugs.His efforts also played a key part in the decisions of the Carter and second Bush administrations to convene presidential commissions on the mental health care system.Despite this impressive roster of accomplishments, Cutler told Psychiatric News that he is most proud of the fact that he knew he had “the absolute trust, confidence, and appreciation” of former APA Medical Director Melvin Sabshin, M.D., with whom he had worked for 20 years. He added that he was also proud that “every Joint Commission on Government Relations’ chair and Area leader quickly came to appreciate the political sensitivity, substantive knowledge, and advocacy effectiveness of the Division of Government Relations lobbying team as it carried out APA’s mission on behalf of psychiatrists and their patients.”In remarks Sen. Edward Kennedy (D-Mass.) had inserted into the Congressional Record, he stated that Cutler “played an important and unique role in building bridges to increased communication and cooperation across the research, prevention, treatment, and policymaking communities. . . . Say ‘Jay Cutler’ to literally hundreds of current and former senators, representatives, congressional staff, executive branch officials, consumer advocates, newsmakers, educators, and just plain folks, and you will receive a warm smile of recognition that speaks directly to what made Jay so successful.”Kennedy also acknowledged Cutler’s widely admired leadership of APA’s lobbying efforts. “To his eternal credit,” Kennedy stated, “throughout Jay’s tenure as director of government relations, APA could be relied upon to fight just as hard for its patients as its members. This is a model that other trade organizations would do well to follow.” ▪ ISSUES NewArchived

“Divided Government” in State Executive Branches

The study of “divided government” has focused on the split partisan control of executive and legislative branches. The concept of divided government can also be applied to the study of state executive branches. There is no plausible reason for state electorates to prefer one party for governor and the opposing party for other state executive branch officials, yet many states have a governor of one party, while several of the state executive branch officers are of the opposing party. This study examines the extent of divided executive branches in state politics. Incumbency, state partisanship, and the changing nature of Southern politics affect levels of divisiveness in state executive branches. Electoral features do not affect levels of divisiveness. The data comprises states that have separately elected state executive officers between the years 1968 and 1993.