Publish and Perish: Congress’s Effort to Snip Snepp (Before and AFSA)

Over three million present and former federal employees, of the Executive as well as the Congress, are parties to so-called “pre-publication review agreements,” which require that they submit any writings on topics related to their employment for Executive review prior to publication. In Section 630 of the Omnibus Continuing Resolution for Fiscal Year 1988, Congress attempted to restrict the use of funds to implement or enforce certain of those agreements. On May 27, 1988, however, the United States District Court for the District of Columbia, in American Foreign Service Association v. Garfinkel (“AFSA “), struck that section down, on the theory that the statute trenched upon the President’s general foreign affairs powers under the Constitution. The plaintiffs have appealed the ruling directly to the United States Supreme Court, and the Court has noted probable jurisdiction.