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1. Stress-Testing State Power: When Governors and Presidents Diverge on Matters of National Security

Author:
Carrie Cordero
Publication Date:
12-2024
Content Type:
Special Report
Institution:
Center for a New American Security (CNAS)
Abstract:
As the end of the first quarter of the 21st century approaches, the United States’ unique federalist system of government is increasingly relevant as it relates to national security and foreign affairs. The activities of federal, state, and local governments are increasingly intertwined with national security issues, which in modern history have been reserved for federal government leadership and responsibility. This trend is observable through the assertion of existing legal authorities by governors, legislative action taken by state legislators, and litigation driven by state attorneys general. There are two main ways that states are increasingly engaging in issues touching national security or foreign affairs. The first is by taking action that does or could potentially impact U.S. national security. This includes actions such as litigating against federal government border security and immigration policy implementation, more assertively exercising National Guard authorities to effectuate homeland security policies or conduct law enforcement activities, or engaging in international trade directly with foreign countries, for example during a global pandemic.1 A second method is by taking action in response to an actual or perceived national security threat. This includes actions such as banning state government employees’ access to TikTok, strengthening election security based on threats as reported by the intelligence community (IC), or limiting foreign investment in a state based on national security concerns.2 In short, the interplay between states and the federal government as it relates to national security is undergoing a shift. As Columbia law professor Matthew Waxman has observed, “The federalist macrostructure of our national security system has changed dramatically during the course of our history, and it will continue to evolve.”3 This trend of increasing federalism contrasts with developments during the second half of the 20th century through the early 21st century, a period characterized by tremendous growth in the federal government’s national security enterprise. Milestones from that era include the 1947 National Security Act, which established the Central Intelligence Agency (CIA), and the accompanying growth of the military and intelligence community enterprise. The post-9/11 era saw additional development, growth, and maturation of federal institutions engaged in national security. This era ushered in a new body of federal law and associated institutions created by those laws. These include the creation of the Department of Homeland Security (DHS), which concentrated the operations and activities of 22 agencies into one. It also led to the creation of the Office of the Director of National Intelligence (ODNI), which provides strategic direction, policy development, and management oversight to the other 17 elements of the intelligence community. Meanwhile, throughout this period, the courts afforded substantial deference to the federal government on national security issues and legal authorities.4 The activities of federal, state, and local governments are increasingly intertwined with national security issues, which in modern history have been reserved for federal government leadership and responsibility. This year, the Securing U.S. Democracy Initiative at the Center for a New American Security (CNAS) began analyzing the impact of increasing federalism on national security with the aim of developing recommendations that address certain practical aspects of this trend. Although there are a variety of areas where potential tensions lie at the intersection of state action and national security policymaking, this initial research report from the first year of work focuses on two specific aspects: (1) the assertion of National Guard authorities in a domestic protest scenario, and (2) the potential impact of a social media ban related to foreign malign influence on elections. A common thread through both subject areas includes a current and evolving national security threat of malign foreign influence. To examine these issues, the CNAS Securing U.S. Democracy Initiative developed and ran two scenario exercises in May 2024 to explore how a clash of legal authorities between the federal government and state governments might play out.5 Participants in the scenario exercises included former senior government officials who previously held roles such as agency heads and general counsels, a former member of Congress, former congressional chief counsels, former senior National Guard leadership and operational-level Guard personnel, a state-level former deputy secretary of state, and national and homeland security experts and practitioners. Many of the participants have held more than one professional position relevant to the issues explored in the exercises. The participants were charged with examining fictional scenarios set in October 2024, one month before the U.S. presidential election. The scenarios roughly assumed the real-world American political landscape as it existed in May 2024, which at that time included a president who was also the presumptive Democratic nominee seeking reelection in November. The governors represented in each exercise matched the political party governing that state in the real world. Accordingly, the Texas governor in Scenario 1 is a Republican; the California governor in Scenario 2 is a Democrat. This report provides background and analysis on potential tensions that can emerge between state action and national security decision-making in the context of two separate scenario exercises. The goal of the exercises was to better understand the dynamics and decision-making that might occur when state and federal officials disagree about a matter of national security.6 Participants were advised to consider constitutional, legal, and policy factors relevant to each scenario, and to make decisions based on the role to which they were assigned. This report summarizes these tailored exercises and provides insights that emerged from them. The report then provides policy recommendations intended to mitigate the tensions that the exercises suggest can arise when federal and state authorities diverge on issues of national security that were the subject of the scenarios.
Topic:
Government, National Security, Domestic Politics, Federalism, and State Power
Political Geography:
North America and United States of America

2. A Report to Congress on Sources of and Access to State Death Data

Author:
Brenna Issman
Publication Date:
07-2022
Content Type:
Working Paper
Institution:
The National Academy of Public Administration (NAPA)
Abstract:
Data on deaths in America are collected and maintained by state vital records offices (VROs). Yet, these data are vitally important to administering federal programs like the Social Security Administration’s (SSA) Supplemental Security Income (SSI) program, identifying eligible individual survivor benefits, and preventing improper payments to deceased individuals. SSA also shares this death data with qualifying federal and state agencies for programmatic purposes. Because these data are initially collected by VROs, a series of budgetary, information security, and reporting issues arise when the data are used by federal agencies. Most VROs rely heavily on death certificate fees purchased by the public to support vital event activities, including the implementation and maintenance of Electronic Death Registration (EDR) Systems. In accordance with Section 802 of the Consolidated Appropriations Act, 2021, the National Academy of Public Administration (the Academy) conducted a study and prepared a report to Congress on the sources of and access to death data for SSA, identifying unmet needs of federal agencies and developing a set of options for providing federal agencies with limited access to state death data. These options were developed to bolster program integrity, address the need for data privacy and security, and best reflect the efficient and effective roles and responsibilities of federal and state agencies. This study highlights the criticality of the intergovernmental system and two of the Academy’s Grand Challenges in Public Administration - Fostering Social Equity and Ensuring Data Security and Privacy Rights of Individuals. As VROs rely on fees from the public for the majority of their funding, it is important to consider both the economic impact on those who pay for death certificates for recently deceased loved ones and the value of state death data to federal agencies. Increased use of EDR for the collection and transfer of death data from the states to the federal government requires enhanced cybersecurity measures to protect the public against fraud and identity theft. The Academy continues to explore these grand challenges as well as intersections of the federal, state, and local issues through the Center for Intergovernmental Partnerships. I would like to thank the National Association for Public Health Statistics and Information Systems (NAPHSIS), the many VRO officials, and the SSA representatives who provided their time and knowledge to the Study Team and Panel over the last year. I am also deeply appreciative of the work of the Study Team and to the Panel of five Academy Fellows whose expertise and experience guided the development of this report. Their careful analysis and thoughtful insights resulted in evidence-based options for consideration for Congress and SSA that will help improve death data sharing between the states and federal government.
Topic:
Governance, Social Security, Federalism, and Death
Political Geography:
North America and United States of America

3. Treaty Termination and the Presidency: Using Custom to Solve Separation of Powers Disputes

Author:
Joseph M. Lapointe
Publication Date:
01-2020
Content Type:
Research Paper
Institution:
Department of Social Sciences at West Point, United States Military Academy
Abstract:
The debate over whether the President, the Senate, or the Congress has primacy in treaty termination remains unsettled. Professor Curtis Bradley incorrectly argues that custom supports a presidential authority to terminate treaties independently. This paper argues that a fuller view of custom, combined with the Intent of the Framers and functional considerations, shows treaty termination is a shared executive-legislative power.
Topic:
Diplomacy, Politics, Treaties and Agreements, Leadership, and Federalism
Political Geography:
North America and United States of America

4. The Use of Executive Orders and Proclamations to Create Immigration Policy: Trump in Historical Perspective

Author:
Michele Waslin
Publication Date:
03-2020
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
This article examines presidential immigration policy making through executive orders (EOs) and proclamations. Donald Trump’s overall volume of EOs has been remarkably similar to that of other presidents, while his number of proclamations has been relatively high. His immigration-related EOs and proclamations, however, diverge from those of his predecessors in several ways. Of the 56 immigration-related EOs and 64 proclamations issued since 1945, Trump has issued 10 and nine, respectively. Overall, about 1 percent of all EOs and proclamations during this period have been immigration related, compared to 8 percent of Trump’s EOs and 2.4 percent of Trump’s proclamations. In a sharp departure from previous presidents, a greater share of his EOs and proclamations have been substantive policy-making documents intended to restrict admissions of legal immigrants and increase enforcement along the border and in the interior of the United States. This article explores Trump’s unorthodox use of executive tools to make immigration policy, circumventing Congress and even members of his own administration. It recommends that: Congress should hold oversight hearings and should consider revoking or modifying EOs and proclamations that have been issued pursuant to the authority provided to the president by Congress, as opposed to those based on the executive’s constitutional authority. Advocacy organizations should continue to challenge the president’s executive actions, the insufficient process and consultation leading to them, their statutory or constitutional justification, and their impact. Congress should take an inventory of the immigration authorities it has delegated, both explicitly and implicitly, to the executive branch and determine when this authority can and should be limited. Congress should pass legislation to update and reform the US immigration system, and thus clarify its intentions regarding US immigration law, policy, and executive authority in this area.
Topic:
Immigration, Border Control, Domestic Politics, and Federalism
Political Geography:
United States, North America, Washington, and D.C.

5. Building a Federal Water Assistance Program: What can we learn from federal programs that protect low income families

Author:
Energy and Environment Program
Publication Date:
09-2020
Content Type:
Working Paper
Institution:
Aspen Institute
Abstract:
The annual Aspen-Nicholas Water Forum, a collaborative initiative between the Aspen Institute Energy and Environment Program and the Nicholas Institute for Environmental Policy Solutions at Duke University, serves as a platform for addressing domestic water challenges in the 21st century. In light of the COVID-19 pandemic, the 2020 Forum took place across a series of virtual sessions exploring what constitutes good water governance through the lenses of water affordability and equity. While this topic was chosen prior to the outbreak of COVID-19, the pandemic has further revealed and exacerbated health and financial disparities across racial, gender, and geographic lines. On September 10th, the group came together for the third session of the 2020 Aspen-Nicholas Water Forum Virtual Series on Water Affordability to address the critical issues and solutions in the water sector brought to light by the pandemic. Participants learned from experts on federal assistance programs in food, energy, and taxes that have been developed to support low-income Americans struggling with poverty and discussed their greatest successes, failures, and potential to meet the needs of the water community. Building a Federal Water Assistance Program summarizes these discussions of the September session.
Topic:
Security, Water, Welfare, Federalism, and Humanitarian Crisis
Political Geography:
North America and United States of America

6. Preventing Endless War Requires Real Congressional Oversight—Not New War Authority

Author:
Ken Gude and Kate Martin
Publication Date:
12-2018
Content Type:
Special Report
Institution:
Center for American Progress - CAP
Abstract:
Congress needs to do real oversight about how and whether the current wars should continue before considering any new AUMF.
Topic:
Defense Policy, War, Military Strategy, Legislation, Federalism, and Civil-Military Relations
Political Geography:
North America and United States of America

7. Controlling Agency Choke Points: Presidents and Turnover in the Senior Executive Service

Author:
Kathleen Doherty, David Lewis, and Scott Limbocker
Publication Date:
11-2017
Content Type:
Working Paper
Institution:
Department of Social Sciences at West Point, United States Military Academy
Abstract:
If presidents wish to see their policy priorities implemented, they need control over career executives occupying key decision-making positions. This paper examines the extent to which new presidential administrations marginalize high level career executives and whether political conflict with a new administration drives executives from their positions. Once in office, presidents are more likely to target individuals with whom they conflict and those in important policymaking positions. Turnover is also affected by the choices of career executives. Some anticipate conflict and strategically exit before a new president takes office. To assess our theory, we use unique new data that combines individual survey responses with personnel records to analyze the probability that an agency executive departs her position from March 2015 to July 2017. Given our findings that turnover is driven both by presidential marginalization and strategic exit by bureaucrats, we conclude with implications for presidential efforts to control the bureaucracy.
Topic:
Leadership, Federalism, Bureaucracy, and Domestic Policy
Political Geography:
United States and North America

8. Advancing the U.S. Nonfederal Movement to Support the Paris Agreement

Author:
Gwynne Taraska and Howard Marano
Publication Date:
11-2017
Content Type:
Policy Brief
Institution:
Center for American Progress - CAP
Abstract:
Since the current U.S. administration announced its intention to withdraw from the Paris Agreement, state, local, and private-sector leaders across the United States have created a landscape of climate initiatives and alliances to demonstrate that the country remains largely committed to the global fight against climate change. To date, the U.S. nonfederal climate movement has focused on pledges to reduce domestic greenhouse gas emissions in an effort to support the Paris Agreement. Given that the movement represents a significant percentage of the U.S. economy and population, these pledges have provided international assurance that the second-largest emitter will continue its pivot toward clean energy—even as the White House pursues an anti-climate agenda. (see text box for a taxonomy of the U.S. nonfederal climate movement)
Topic:
Climate Change, Environment, International Cooperation, Leadership, Federalism, and Paris Agreement
Political Geography:
North America and United States of America

9. The Citizen, Power and Democracy in Europe's crisis

Publication Date:
02-2014
Content Type:
Video
Institution:
Vaclav Havel Library
Abstract:
The first conference – entitled The Citizen, Power and Democracy in Europe’s crisis – will take place in Prague on 21 and 22 February 2014. The Prague Václav Havel European Dialogues begins with two panel discussions: Europe and the Crisis of Democratic Capitalism and Reinventing the European Project. Evening Conversation: What Europe? What Democracy? will follow. Saturday’s programme will open with a session entitled Europe and the Limits of Civil Society. From consensus to a conflict-driven policy?, while a subsequent discussion, Federalism: The American vs. The European Way, will bring the first ever Václav Havel European Dialogues to a conclusion.
Topic:
Civil Society, Politics, Democracy, Capitalism, and Federalism
Political Geography:
United States, Europe, and North America

10. TACIT AMENDMENTS

Author:
Oona A. Hathaway, Haley Nix, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
As a general rule, the President is “‘without authority, except by and with the advice and consent of the Senate, to modify a treaty provision.’”2 Thus, in amending a treaty, parties effectively sign and ratify a new treaty, to which the standard treaty processes apply. However, numerous treaties have established procedures for modifications to the regime that do not rise to the level of formal amendments to the treaty. This report focuses on such “unratified treaty amendments”—which include what are called “tacit amendments.” Unratified amendments are amendments to treaties that are made without formal Senate ratification.3 They have proven a useful tool in creating robust treaty regimes in a changing world. Just as the use of executive agreements in general has expanded rapidly in the past century,4 treaty regimes increasingly have adopted amendment processes that do not require a full ratification process. And just as executive agreements have raised questions about Senate prerogatives, so too have unratified amendments. There are two primary ways that the U.S. government modifies underlying treaties through an unratified amendment5 —first, through the use of executive agreements; and, second, through the use of tacit amendments. Part I describes how each process works. It argues that both pass constitutional muster so long as the Senate has provided its clear advice and consent to the use of such processes (although not necessarily to the substance of the modifications) in the first instance. Part II outlines and evaluates the various ways in which the Senate has responded to attempts to modify treaties by executive agreement or by tacit amendment in the past. It concludes that the Senate’s requirements of prior notice and its focus on technical provisions, while not always easy to achieve in practice, are sensible ways to maintain Senate prerogatives. Part III concludes.
Topic:
Foreign Policy, Treaties and Agreements, Domestic Politics, and Federalism
Political Geography:
North America and United States of America