Law Commons^™

National Security Rulemaking, Robert Knowles

Florida State University Law Review

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 …