DELEGATING NATIONAL SECURITY.

• Author: Knowles, Robert

ABSTRACT

Conservative scholars and a Supreme Court majority support reviving the nondelegation doctrine as a way to downsize the administrative state. But proposals from these scholars and Justices inevitably maintain there should be an exception for national security.

This Article explains why a national security exception defeats the nondelegation doctrine's goals of preserving the separation of powers and individual liberty. In doing so, this Article charts the ways the national security state regulates and accounts for its immunity from the harshest attacks on the administrative state. This Article also predicts how this dynamic would affect a nondelegation revival.

This Article begins by offering a new model depicting agency lawmaking in national security. It draws on insights from military-industrial complex theory, which has received scant attention from legal scholars. What I call the military-administrative complex uses threat-inflation to obtain increased regulatory authority over individuals, including American civilians. As its reach expands, the boundary between domestic and national security regulation fades.

Next, this Article describes why presidential control theory--which grounds the legitimacy of delegation in the President's political accountability and oversight--cannot justify a national security exception. The military-administrative complex is so entrenched and insulated that even the President must delegate vast discretion to agencies within it.

Finally, this Article scrutinizes the sources the Justices themselves cite to support their nondelegation arguments. If the Court adopted the reasoning in these sources, this Article predicts, a revived nondelegation doctrine with a national security exception would be inherently unstable. Ever-expanding definitions of "national security" could allow the exception to swallow the rule.

INTRODUCTION I. NONDELEGATION AND LIBERTARIAN CONSTITUTIONAL LAW A. Libertarian Constitutionalism B. The Nondelegation Doctrine and Libertarian Constitutionalism II. NATIONAL SECURITY DELEGATION A. Maximal Discretion B. Minimal Scrutiny III. THE MILITARY-ADMINISTRATIVE COMPLEX A. The Military-Industrial Complex as Theory B. The Myth of Presidential Control C. From a Military-Industrial to a Military-Administrative Complex D. The Vicious Cycle of the Military-Administrative Complex 1. Threat Inflation 2. Increased Regulatory Authority 3. Pressure to Use Authority and Its Use 4. Intelligence Validating the Use of Legal Authority and Resulting Threat Inflation 5. Militarization of Other Regulatory Domains IV. THE MILITARY-ADMINISTRATIVE COMPLEX AND LIBERTARIAN CONSTITUTIONALISM CONCLUSION INTRODUCTION

The United States government's national security activities should raise profound nondelegation concerns. (1) Congress gives agencies in that realm maximal discretion and minimal scrutiny. (2) On this permissive legal armature has grown the world's largest bureaucracy. (3)

That bureaucracy engages in profuse rulemaking and adjudication--the meat and drink of administrative agencies. (4) It works hand in glove with a vast network of private contractors who perform many critical national security functions. And it increasingly regulates individuals, including American civilians. (5)

I call the combination of this bureaucracy and its private contractors the military-administrative complex (MAC). (6) Although there is a rich literature on presidential authority in national security, (7) the independent behavior of regulating agencies in that space has just begun to receive attention from legal scholars. (8) And there has been no comprehensive assessment of national security's significance for recent debates about the constitutionality of the administrative state as a whole. (9)

This Article supplies such an assessment, which is long overdue. The near absence of national security from the debate so far is striking. For one thing, the MAC is immense and growing. Its public side includes the Departments of Defense, State, and Homeland Security; the National Security Council; the Central Intelligence Agency (CIA); and more than a thousand other sub-agencies. (10) These entities employ millions. (11) Their activities account for more than half of all federal discretionary spending. (12)

Moreover, the rise of this regulatory behemoth represents an expansion of the administrative state even as other parts of it are under siege. (13) Deregulatory fervor, budget cuts, and public mistrust of government have weakened agency authority. (14) Trump appointees set out to "deconstruct[] the administrative state." (15) And a Supreme Court majority seems prepared to revive the nondelegation doctrine, putting much of that state in legal jeopardy. (16)

Those who challenge the administrative state's constitutionality--I will refer to them as constitutional libertarians (17)--should be disturbed by the rise of the military-administrative complex. And yet, for the most part, they are not. Constitutional libertarians do not regard very broad delegations of national security power as problematic. (18) The textual rationale for carving out this exception is that, as Justice Gorsuch put it, "[the President] enjoys his own inherent Article II powers" in foreign affairs. (19) A delegation of these Article II powers to agencies, then, cannot be a delegation of "legislative" power, no matter how legislative-seeming the nature of those powers. (20)

This highly formalist logic does little actual work, however. (21) Beneath it lie functional assumptions springing from a core belief that national security is a separate and unique sphere of governance. (22) This Article seeks to demonstrate that these assumptions are idealized and obsolete; they fail to account for the vast scope and changing nature of the government's national security activities. (23) Nor do they acknowledge the serious threat to individual liberty those activities increasingly present. (24)

In addition, by maintaining that national security should be exempt from the nondelegation doctrine, libertarian constitutionalists undermine their own project. They would place on the President's shoulders the burden of both providing clear principles to guide agency discretion and performing most oversight functions Congress and the courts ordinarily would. This burden is an impossible one. (25) The President, too, must delegate very broad regulatory authority to the national security bureaucracy. (26)

No one understood this reality better than Dwight Eisenhower. His famous 1961 warning about the threat to "democratic processes" presented by the "military-industrial complex" was in some ways a cry for help. (27) Throughout his career--as military officer, defense bureaucrat, Supreme Allied Commander in World War II, and President--he grappled with the problem of how to manage the military and its contractors, (28) which he came to see as interest groups. (29) He clashed with them over numerous policies--even Cold War grand strategy. (30) In his Farewell Address, he described the "military-industrial complex" as a symbiotic relationship between the defense bureaucrats and private firms, who worked together to bend national policy toward militarism and extend their domains of influence. (31)

Today, empowered by expanding definitions of national security and the individualization of warfare and foreign policy, (32) the military-industrial complex has evolved into a regulating administrative state--the military-administrative complex (MAC). (33) Take the National Security Agency (NSA), for example. (34) A Department of Defense (DoD) component led by a general who also heads the U.S. Cyber Command, the NSA conducts warrantless mass surveillance of American citizens. (35) It works with thousands of contractors. And it regulates. It renders an individualized determination--adjudication--when it identifies targets for surveillance. (36) It produces broadly-applicable policies--rulemaking--when it prescribes how Americans' personal data may be collected and used. (37) Even after Congress scaled back the NSA's formal surveillance authority, moreover, the agency has managed to expand its actual regulatory power by obtaining data from other agencies and buying it from private brokers. (38) The national security bureaucracy has long experience adjusting regulatory strategies and using private entities to enhance its authority. (39) And that authority collides more and more often with liberty interests. (40)

This Article considers how agencies regulate in the national security space, why their regulating remains largely immune from the constitutional libertarians' attack on other areas of administrative action, and the effect of this dynamic on the entire administrative state. A comprehensive survey of the legal authority for agency regulation in the national security realm would exceed the space available here. Nor is it possible in this assessment to enumerate all the exercises of agency discretion in that realm. But this Article seeks to provide enough examples to demonstrate how broad and deep a national security exception to the nondelegation doctrine really is. Such an exception injects profound instability into the nondelegation doctrine and, along with it, the libertarian constitutionalist reform project.

Part I provides an overview of the non-delegation doctrine and the constitutional libertarian project which has a revival of the doctrine as its centerpiece. I emphasize the importance of what one might call the penumbral aspect of the nondelegation doctrine: although, as a formal matter, the doctrine prohibits delegations lacking "intelligible principles" to guide agency discretion, the true function of the nondelegation doctrine is more fundamental--to constrain the amount of its power Congress conveys to the Executive Branch.

Part II charts key legal frameworks constituting the MAC. Congress, through vague delegations, gives agencies...