In October 2020, Just Security published the Good Governance Papers, in which leading experts explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. Earlier this year, in connection with the one-year mark of the Biden administration, we invited authors to provide brief updates on their Papers and, where applicable, further recommendations for the Biden administration and Congress. For more information, please see the introductions to the original series and to the updated series.
Today, as President Joe Biden prepares to deliver the State of the Union, we have collected the updates published to date in a brief “Report Card” summary below. The Report Card is divided into (1) updates for which the authors noted some meaningful progress since publication of the original Papers; (2) updates where the authors assessed that there has been some movement but more improvement is needed; and (3) updates where the authors concluded there was little to no progress. No policy reforms reviewed qualified for “A+/Exceeded Expectations”-level progress. (Several Papers for which the authors were unavailable to participate in the updates, primarily because they are now in government themselves, or for which updates may be forthcoming, are not included in the Report Card. A complete list of the original Papers is available at the bottom of this page.)
At the time of the original Good Governance Papers in October 2020, the United States had already experienced a number of dramatic events, including the systematic rule-of-law violations and norm breaking that prompted the original Papers as well as the first nine months of a global pandemic. Now, a year and a half later, the United States has weathered a contested presidential election, an insurrection, a persistent pandemic, and – with Russia’s invasion of Ukraine last week and Russia calling a nuclear alert – existential questions about the international legal order and control over nuclear weapons. Against this backdrop of geopolitical uncertainty, it is clearer than ever that the strength and stability of democratic, law-based institutions matter, serving as a bulwark against both domestic and international authoritarianism.
To that end, we encourage readers interested in these issues to review the complete analyses of the Good Governance Papers and 2022 updates, linked below.
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Updates Reflecting Some Progress:
- No. 2: The Congressional Subpoena Power (2022 Update) by Emily Berman. Congress and the Department of Justice have shown increased willingness to enforce Congress’s subpoena power. The Protecting Our Democracy Act, which passed in the House, would further strengthen the subpoena power regardless of which party is in power, although the legislation faces an uphill battle in the Senate.
- No. 8: How to Strengthen Oversight by Congress (2022 Update) by Jim Townsend and Elise Bean. Five of the authors’ seven original recommendations saw significant progress, primarily through the work of the House Select Committee on the Modernization of Congress.
- No. 11: Strengthening Inspectors General (2022 Update) by Danielle Brian and Liz Hempowicz. Although the legislative reform could be stronger, the Inspector General Independence and Empowerment Act (H.R. 2662) includes the “for cause” removal protections the authors championed to insulate IGs from unwarranted removals. The authors also note that Biden gets “a ‘free space’ on his report card for not removing any IGs with an insufficient explanation to Congress.”
Updates Reflecting Positive Momentum, But More Improvement Needed:
- No. 14: War Powers Reform (2022 Update) by Tess Bridgeman and Stephen Pomper. Despite no legislation passing last year, significant support has emerged for bipartisan War Powers Resolution reform that – while not a panacea – would mark substantial improvement. With bipartisan bills pending in both chambers, there are signs that such reform measures could make it into a future National Defense Authorization Act.
- No. 15: Enforcing the Emoluments Clauses (2022 Update) by Richard Painter. The Protecting Our Democracy Act, which passed in the House, would provide significant reforms in line with those suggested by the author. It faces, as noted, an uphill battle in the Senate, although Congress could still pass relevant reforms on a piecemeal basis.
- No. 18: Reforming Emergency Powers (2022 Update) by Elizabeth Goitein. A number of pending bills could help reform emergency powers, but none has passed so far – and the window for reform may not stay open lor long.
Updates Reflecting Little to No Progress:
- No. 5: Prepublication Review – How to Fix a Broken System (2022 Update) by Oona Hathaway and Jack Goldsmith. Widespread recognition of the need to reform the prepublication review system governing millions of former federal employees failed to result in any policy changes. The next step is judicial review in Edgar v. Haines, which the authors are covering in a Just Security/Lawfare series that begins here.
- No. 6: Domestic Military Operations (2022 Update) by Mark Nevitt. No progress on recommendations for reform of the Insurrection Act, the Posse Comitatus Act, or National Guard Authorities. One sliver of hope: the District of Columbia National Guard Home Rule Act, introduced last year, could give the Mayor of the District of Columbia authority over the DC National Guard, equivalent to that enjoyed by governors.
- No. 20: Reporting and Strengthening Norms of Nuclear Restraint (2022 Update) by Dakota S. Rudesill. The Jan. 6 attack on the Capitol was a catastrophic near-miss for the nuclear command and control system, due to deep concern about the president’s judgment and the peril in which the insurrection placed the top successors to the presidency and the Vice President’s nuclear “football.” So far, however, Congress has not acted to reform the system.