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Document Type

Article

Abstract

Agencies performing national security functions regulate citizens’ lives in increasingly intimate ways. Yet national security rulemaking is a mystery to most Americans. Many rules—like those implementing the National Security Agency’s vast surveillance schemes—remain secret. Others are published, but the deliberations that led to them and the legal justifications for them remain hidden.

Ordinarily, these rules would undergo the Administrative Procedure Act’s notice-and-comment process, which has earned wide, if not universal, praise for advancing democratic values and enhancing agency effectiveness. But a national security exception from notice-and-comment in the APA itself, along with the overuse of classification authority, combine to insulate most national security rulemaking from public scrutiny and meaningful judicial review. The result is a national security administrative state that is insular and unaccountable to the public.

Some scholars find this exceptional treatment inevitable, while others have proposed reforms. But no one has sought to provide a full accounting of national security rulemaking’s scope and historical origins. By doing so, this Article demonstrates that the APA exception is historically contingent—a response to the rise of totalitarian states and the Second World War. As a product of its time rather than an essential attribute of all administrative law systems, it is a relic in a globalized world in which the foreign and the domestic are increasingly intertwined, and the line between national security and ordinary rulemaking therefore begins to fade entirely.

This Article suggests reforms that would increase public deliberation in national security rulemaking, while accounting for the importance of secret-keeping when truly necessary. Among these proposed reforms is a change to the current practice allowing national security agencies to invoke the security exception to notice-and-comment after a rule is challenged in court, rather than at the notice-and-comment stage itself. These reforms would improve the current rulemaking practice, which undermines the transparency necessary for effective democratic participation.

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