The Critical Nature of Sunset Provisions in National Security Legislation

• Pages: 885-909
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Benjamin Lauenroth
• Subject Matter: Derecho Civil

NOTE

The Critical Nature of Sunset Provisions in National

Security Legislation

BENJAMIN LAUENROTH* TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 886

I. THE PROBLEM: NATIONAL SECURITY AUTHORITIES CREATE AN

IMBALANCE OF POWER IN FAVOR OF THE EXECUTIVE, UNDERMINING

DEMOCRATIC NORMS AND HARMING NATIONAL SECURITY . . . . . . . . . . . . 887

II. WHY SUNSET PROVISIONS EFFECTIVELY REBALANCE THE POWER

BETWEEN THE EXECUTIVE AND CONGRESS . . . . . . . . . . . . . . . . . . . . . . . . . 890

III. ANALYSIS OF CASE STUDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892

A. MANY OF THE PROBLEMS WITH THE 2001 AND 2002 AUMFS COULD

HAVE BEEN MITIGATED BY INCLUDING SUNSET PROVISIONS . . . . . . . 893

1. Problems with the 2001 AUMF....................... 893

2. Problems with the 2002 AUMF....................... 896

3. Inclusion of sunset provisions would almost certainly have

resulted in a narrower, more accurate counterterrorism

AUMF over time and in the elimination of the potential for

future abuse of the 2002 AUMF......................... 897

B. THE RECURRING REAUTHORIZATION REQUIREMENTS OF FISA

SECTION 702 DEMONSTRATE THE DELIBERATIVE BENEFITS OF

SUNSET PROVISIONS IN NATIONAL SECURITY LEGISLATION . . . . . . . . 900

IV. OBJECTIONS TO SUNSET PROVISIONS AS A SOLUTION . . . . . . . . . . . . . . . . . 905

A. UNDERESTIMATING THE DYSFUNCTION OF CONGRESS . . . . . . . . . . . . 906

B. CHANGING THE QUESTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 908

* Georgetown Law, J.D. 2024; Berklee College of Music, B.M. 2013. © 2025, Benjamin Lauenroth.

All statements of fact, analysis, or opinion are expressed exclusively in the Author’s personal and

individual capacity. The content does not ref‌lect the off‌icial positions or views of any current or former

employer.

885

INTRODUCTION

In the wake of the recent reauthorization of Section 702 of the Foreign

Intelligence Surveillance Act of 1978 (FISA),

1

the role of temporary legislation

in the national security sphere is once again at issue. Revelations of misuse of the

surveillance authority by individuals within the Federal Bureau of Investigation

(FBI) raised widespread alarm and inspired calls to revoke the authority entirely.

2

See Juhi Doshi, What Is Section 702? Congress Is Debating the Controversial Surveillance Power,

NBC NEWS (July 31, 2023, 1:14 PM), https://www.nbcnews.com/politics/congress/section-702-foreign-

intelligence-surveillance-act-congress-what-know-rcna96259 [https://perma.cc/U6RD-F9YQ].

In December 2023, the authority expired and was renewed through April 2024—

and after a nail-biting four months, it was renewed once again in the early hours

of the morning after it expired.

3

See National Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, § 7902, 137

Stat. 136, 1108 (2023); Reforming Intelligence and Securing America Act § 19(a); Preston Marquis,

FISA Section 702 Reauthorized for Two Years, LAWFARE (Apr. 30, 2024, 8:01 AM), https://www.

lawfaremedia.org/article/f‌isa-section-702-reauthorized-for-two-years [https://perma.cc/JU5Y-TZXK].

These events remind us that national security

authorities have a special tendency to expand and become entrenched within the

Executive Branch. However, they also remind us of the benef‌its of periodically

coming together to vigorously debate the value and role of such authorities,

review them, and revise them as necessary to ref‌lect the interests of the people.

Part I of this Note will explain the power imbalance created by national secu-

rity legislation as a result of extreme judicial deference, congressional timidity,

executive power-guarding, and lack of transparency. Part II will demonstrate

how the inclusion of a sunset provision in a grant of national security authority to

the President helps solve this power imbalance. By exchanging the presumption

of continuance for one of discontinuance, a sunset provision leverages congres-

sional inaction in favor of repealing the authority. This puts the burden of justifying

the continued existence of the authority where it should be—on the Executive—and

the power to revoke it where it should be—with a simple majority of Congress. This

mitigates the tendency of Congress to avoid diff‌icult political questions and the

tendency of presidents to power-guard in the national security sphere. Moreover,

it improves transparency and accountability in the Executive Branch by forcing

the Executive to participate in a national deliberative process over the ongoing

utility of national security tools.

Part III will then analyze three case studies demonstrating these principles. An

examination of the 2001 and 2002 Authorizations for the Use of Military Force

(AUMFs) reveals that, in practice, failure to include a sunset provision enables con-

gressional avoidance and presidential power-guarding. An analysis of the reautho-

rization process for FISA Section 702 demonstrates that a sunset provision ensures

a robust public debate over the merits of an authority that includes the transparent,

genuine, and meaningful participation of the Executive Branch.

Part IV will respond to some counterarguments. Although there is the potential

for congressional dysfunction as a result of a sunset provision, this risk merely

1. See FISA Amendments Act of 2008, Pub. L. No. 110-261, §§ 702, 403(b), 122 Stat. 2436, 2438,

2474 (codif‌ied as amended at 50 U.S.C. § 1881); Reforming Intelligence and Securing America Act,

Pub. L. No. 118-49, § 19(a), 138 Stat. 862, 891 (2024).

2.

3.

886 THE GEORGETOWN LAW JOURNAL [Vol. 113:885