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Administrative National Security

Elena Chachko
Thursday, August 22, 2019, 3:00 PM

In the past two decades, the United States has applied a growing number of foreign and security measures directly targeting individuals—natural or legal persons. Administrative agencies have taken the lead in designing and implementing these measures. Empowered by delegations from Congress and the president, agencies largely control related fact-finding, target selection, routine management and administrative review of individualized measures.

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In the past two decades, the United States has applied a growing number of foreign and security measures directly targeting individuals—natural or legal persons. Administrative agencies have taken the lead in designing and implementing these measures. Empowered by delegations from Congress and the president, agencies largely control related fact-finding, target selection, routine management and administrative review of individualized measures.

A large component of this practice has been widespread application of individualized economic sanctions, ranging from sanctions against suspected proliferators, terrorists and hackers to sanctions against Russians and Iranians over a range of nefarious activities. Not long ago, the Trump administration boasted that it had designated close to 1,000 Iranian persons and entities under its Iran “maximum pressure campaign.” In March 2018, the administration announced that 100 Russia-related individuals and entities have been designated under various Russia sanctions authorities, and more sanctions have been imposed since.

Additional sanctions have been imposed under multiple sanctions regimes relating to other foreign and security challenges. But sanctions are far from the only area in which the resort to individualized measures has increased significantly. The past 20 years have also seen extensive use of security watchlists and other travel restrictions, targeted killings, and detentions. More recently, there has been an uptick in action against individuals and groups involved in cyberattacks on U.S. targets, particularly through criminal indictments. The continuous development of technology that facilitates large-scale individualized targeting is likely to accelerate this trend.

While the individualization of foreign and security policy in discrete contexts like sanctions or targeted killings has generated extensive legal commentary, there has been little discussion about the growing individualization of U.S. foreign and security policy as an overarching trend that cuts across different types of measures and policy areas. This phenomenon merits attention given how central individualized measures have become in the general scheme of U.S. foreign and security policy. Moreover, these measures also challenge traditional assumptions about the role of the president and the courts in those areas.

In a new draft paper, forthcoming in the Georgetown Law Journal, I offer an integrated assessment of this practice through an administrative law lens. I argue that foreign and security policy individualization has bolstered the role of administrative agencies in shaping and implementing key foreign policy and national security measures in underappreciated ways. The resulting form of administrative action, which I call administrative national security, involves the exercise of considerable discretion by administrative agencies on a routine, chronic and indefinite basis within a broad legal framework established by Congress or the president. Because applying general standards and rules to individuals is at the core of administrative national security, the practice is best understood as an emerging form of administrative adjudication in the foreign affairs and national security space.

To be sure, administrative agencies have long been involved in foreign and security policy: The State and Defense Departments and the intelligence community are obvious examples. And in today’s highly regulated global environment, administrative agencies often address foreign and security matters through measures of general applicability, such as rules executing international agreements. These broader phenomena are not my focus. Rather, I concentrate on the subset of administrative action in the foreign and security realm that consists of individualized measures applied repeatedly and indefinitely through bureaucratic mechanisms.

The first part of the paper considers five types of individualized measures that form the category of administrative national security: targeted killings; detentions; targeted sanctions; security watchlists, no-fly lists and other travel restrictions; and individualized cyber indictments. It explores the historical precursors of these measures, the increase in their application in the past two decades, the growing role of administrative agencies in designing and implementing them, and how they have been received by the courts. After describing the rise and operation of administrative national security, the paper examines how the administrative state integrates with the presidency and the courts in this category.

Administrative National Security and the President

Administrative national security has a number of structural and doctrinal implications for presidential control of administrative agencies and presidential power in the foreign and security sphere. Influential accounts of the relationship between the president and the administrative state in the domestic policy context—in particular then-Professor Elena Kagan’s “Presidential Administration”—have portrayed a president who asserts authority over the administrative state, aligns it with his policy priorities, and takes an active and visible role in the regulatory process. The president’s elevated role in these contexts would suggest a strong version of presidential administration in shaping and overseeing the legal architecture of administrative national security. But, in fact, the opposite is the case. The paper shows that the president has delegated significant elements of his foreign relations powers as chief executive and commander-in-chief to the administrative state. He has gradually reduced his personal involvement in their exercise. The administrative state has in turn established largely independent mechanisms to effectuate those powers—mechanisms that often persisted across administrations. These trends are not unique to the Trump administration, in which there have been many examples of the president being out of sync with his bureaucracy. Rather, they reflect broader structural dynamics that transcend administrations.

Conceiving of administrative national security as administrative adjudication helps explain why presidential involvement in this category has diminished over time. This decline in de-facto presidential control and oversight dovetails with an entrenched practice and norm of presidential insulation from administrative adjudication in domestic policy. The norm grew out of a combination of functional and due process concerns, as well as conventions of agency independence. The calculus of due process and agency independence may be different in the realm of administrative national security for a number of reasons the paper explores, but the functional underpinnings of limited presidential control of administrative adjudication retain their force. The president and his staff simply lack the capacity and bandwidth to routinely make thousands of complex, granular individualized decisions.

The shift in the center of gravity in administrative national security from the president to the bureaucracy simultaneously constrains and empowers the president in exercising his foreign affairs and national security powers. The constraining function stems from the entrenchment of the administrative national security bureaucracy in the past two decades. While it does not, in principle, restrict the president’s constitutional or statutory authority over foreign and security matters, the administrative national security bureaucracy does channel action toward reliance on individualized measures. Its very existence makes it more likely that presidents will default to utilizing it because of bureaucratic inertia and the costs of changing course.

The empowering function—arguably the more significant function—stems from the array of fine-grained and subtle options this bureaucracy gives the president to address intractable foreign and security problems he faces in the twenty-first century. The traditional presidential toolkit in this context consisted largely of diplomacy, military intervention against states, economic boycotts and covert action. The administrative national security bureaucracy, in contrast, gives the president a menu of “tactical,” low-hanging alternatives that can be less costly and sometimes more effective—politically, economically and strategically. The president can often deploy these measures unilaterally within existing legal and policy frameworks, without further authorization from Congress. Finally, as measures like targeted killings and blacklisting became bureaucratized and gradually regularized, public scrutiny has atrophied, allowing the president to apply them more aggressively. Such measures used to be the subject of intense public debate, but they hardly command attention anymore despite their frequent application.

Administrative National Security and the Courts

Accounting for administrative national security also has implications for the role of courts. The concept explains the growth in adjudicated foreign and security cases: As the paper elaborates, individuals targeted by foreign and security measures are more likely to satisfy justiciability and reviewability requirements under the Administrative Procedure Act (APA) than in cases that challenge broader policies. The notion of administrative national security also offers a justification for judicial review, challenging assumptions underlying the conventional wisdom that courts should generally defer to the political branches—typically the executive—in foreign and security matters due to their inferior information and competence. Such deference makes much less sense when individuals are the targets of foreign policy and national security measures through a process that resembles ordinary administrative adjudication. In this limited context, courts do not necessarily face abstract policy problems that they are ill equipped to adjudicate. Rather, they face familiar questions of administrative law and due process. Secrecy and dispatch as institutional arguments for deference are also diminished in administrative national security. Of course, those who are skeptical about judicial review of foreign affairs and national security on democratic legitimacy grounds might not be persuaded by these arguments. But such arguments do weaken the institutional prong of the case against judicial review in this context.

Studying administrative national security offers a new perspective for examining the relationships among the administrative state, the president and the courts in the foreign and security realm that challenges established assumptions and narratives. The paper sets out to draw attention to this category and begins to unpack its implications, at the intersection of foreign and security policy and administrative law.

Elena Chachko is the inaugural Rappaport Fellow at Harvard Law School. She is also an academic fellow at the Miller Institute for Global Challenges and the Law at Berkeley Law School. Elena’s scholarship at the intersection of administrative law, foreign relations law, national security law and international law has been published or is forthcoming in the California Law Review, the Georgetown Law Journal, the Stanford Technology Law Review, the Yale Journal of International Law, and the American Journal of International Law Unbound, among other publications. It has won several awards, including the 2020 Mike Lewis Prize for national security law scholarship, the Harvard Law School Irving Oberman constitutional law writing prize, and the Harvard Law School Mancini writing prize. Elena previously held fellowships at the University of Pennsylvania’s Perry World House, the Harvard Kennedy School’s Belfer Center, and the Harvard Weatherhead Center. She received her doctoral degree from Harvard Law School. Prior to her doctoral studies, Elena clerked for Chief Justice Asher D. Grunis on the Supreme Court of Israel. She has also worked at the United Nations Office of Counterterrorism and the Israeli Ministry of Foreign Affairs, where she focused on arms control and non-proliferation of weapons of mass destruction.

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