Jason Lee, an FBI agent with Chinese heritage, held his top secret security clearance for ten years until he failed a routine polygraph exam. 1Open this footnote Close this footnote 1 Lee v. Garland, 120 F.4th 880, 884-85 (D.C. Cir. 2024). …Open this footnote Close Having previously served as a confidential source exposing FBI polygraph practices, Lee argued that his failed polygraph was pretextual and that the revocation was retaliation for his whistleblowing. 2Open this footnote Close this footnote 2 Id. at 885. …Open this footnote Close Lee filed a lawsuit against the Department of Justice, alleging Title VII discrimination as well as First and Fifth Amendment violations in his clearance revocation. 3Open this footnote Close this footnote 3 Id. …Open this footnote Close

But in 2024, the D.C. Circuit affirmed the dismissal of Lee’s claims in Lee v. Garland, reasoning that such claims were nonjusticiable because national security clearance decisions fall fully within executive discretion—even when constitutional concerns may plausibly be at stake. 4Open this footnote Close this footnote 4 Id. at 891, 895 (reasoning that “Congress has attempted neither to restrict, nor to make judicially reviewable, Executive Branch clearance decisions”). …Open this footnote Close Previously, the D.C. Circuit had declined to decide whether constitutional claims were barred under the deferential precedents set by the Supreme Court. 5Open this footnote Close this footnote 5 See Dep’t of the Navy v. Egan, 484 U.S. 518, 531-32 (1988) (holding that Congress did not intend to grant the Merit Systems Protection Board the authority to review the substance of security clearance determination); see also Gill v. U.S. Dep’t of Just., 875 F.3d 677, 681-82 (D.C. Cir. 2017) (declining to decide whether Egan barred constitutional claims where a Muslim FBI agent alleged discriminatory revocation of his clearance); id. at 684 (Tatel, J., concurring) (“When dismissing statutory challenges as barred by Egan, our court has repeatedly distinguished between statutory and constitutional claims.”); Palmieri v. United States, 896 F.3d 579, 590 (D.C. Cir. 2018) (Katsas, J., concurring) (noting that “[t]he question whether a plaintiff can seek to undo the denial or revocation of a security clearance, based on non-frivolous constitutional challenges . . . is weighty and difficult”). …Open this footnote Close Lee foreclosed these constitutional challenges, transforming executive discretion into near-total immunity in an area where over two million Americans are vulnerable to politically motivated discrimination. 6Open this footnote Close this footnote 6 See Nat’l Counterintelligence & Sec. Ctr., Fiscal Year 2019 Annual Report on Security Clearance Determinations 6 (2020) (finding that as of October 2019, 2,949,756 individuals were holding active security clearances, and thus vulnerable to revocation of any kind). …Open this footnote Close

The consequences of this shift are far from theoretical. In 2025, President Trump issued executive orders (EOs) calling for the suspension of all security clearances held by attorneys at five firms: Perkins Coie, Paul Weiss, Jenner & Block, WilmerHale, and Susman Godfrey. 7Open this footnote Close this footnote 7 See Exec. Order No. 14,230, 90 Fed. Reg. 11781 (Mar. 11, 2025); Exec. Order No. 14,237, 90 Fed. Reg. 13039 (Mar. 20, 2025); Exec. Order No. 14,246, 90 Fed. Reg. 13997 (Mar. 28, 2025); Exec. Order No. 14,250, 90 Fed. Reg. 14549 (Apr. 3, 2025); Exec. Order No. 14,263, 90 Fed. Reg. 15615 (Apr. 15, 2025). …Open this footnote Close The Administration revoked the Paul Weiss EO after the firm’s agreement to provide $40 million in legal services during Trump’s term. 8Open this footnote Close this footnote 8 Exec. Order No. 14,244, 90 Fed. Reg. 13685 (Mar. 26, 2025). …Open this footnote Close The D.C. District Court issued temporary restraining orders (TROs) enjoining enforcement of several provisions of the other EOs against Perkins Coie, Jenner & Block, and Susman Godfrey; yet in all three cases, the TROs left untouched Section 2 of each EO—the provision suspending security clearances. 9Open this footnote Close this footnote 9 Perkins Coie LLP v. U.S. Dep’t of Just., 770 F. Supp. 3d 190, 191 (D.D.C.), opinion clarified, No. 25-CV-00716, 2025 WL 853140 (D.D.C. Mar. 19, 2025), and reconsideration denied, No. 25-716, 2025 WL 1207079 (D.D.C. Apr. 25, 2025) [hereinafter Perkins Coie TRO]; Jenner & Block LLP v. U.S. Dep’t of Just., No. 25-CV-00916, 2025 WL 946993, at *1 (D.D.C. Mar. 28, 2025); Susman Godfrey LLP v. Exec. Off. of the President, No. 25-1107, 2025 WL 1113408, at *1 (D.D.C. Apr. 15, 2025). …Open this footnote Close

In WilmerHale’s TRO, the court explicitly invoked Lee v. Garland to justify denying an injunction on the EO’s Section 2 security clearance revocations. 10Open this footnote Close this footnote 10 Wilmer Cutler Pickering Hale & Dorr LLP v. Exec. Off. of the President, 774 F. Supp. 3d 86, 89 (D.D.C. 2025) (“[S]ecurity clearance decisions are within the purview of the Executive Branch, see Lee v. Garland . . . .”). …Open this footnote Close While other sections were found to likely violate the First Amendment, the court upheld Section 2 on the view that security clearance decisions fall within executive discretion. 11Open this footnote Close this footnote 11 Id. …Open this footnote Close To date, only in the Perkins Coie litigation did one district court find a way to review those suspensions—though on explicitly narrow grounds and by distinguishing the “general policy” the EOs created as a single package. 12Open this footnote Close this footnote 12 Perkins Coie LLP v. U.S. Dep’t of Just., No. 25-716, 2025 WL 1276857, at *19-20 (D.D.C. May 2, 2025), appeal filed, No. 25-5241 (D.C. Cir. July 2, 2025). …Open this footnote Close

Lee v. Garland entrenches a dangerous form of autocratic legalism, 13Open this footnote Close this footnote 13 See Kim Lane Scheppele, Autocratic Legalism, 85 U. Chi. L. Rev. 545, 548 (2018) (defining “autocratic legalism” as a system in which executives use legal change “in the service of an illiberal agenda”). …Open this footnote Close collapsing judicial review in the face of executive invocations of “national security” and greenlighting retaliation and discrimination under the guise of discretion. This Essay charts how the judiciary’s deference to the executive branch’s national security judgments has drifted into abdication of constitutional checks in the security clearance context. It argues that Lee effectively seals the doctrinal safety valve preserved against an overreaching executive in Supreme Court precedents like Department of the Navy v. Egan and Webster v. Doe. It then examines the limited workaround Judge Howell articulated in Perkins Coie v. Department of Justice, before offering a roadmap for restoring the judiciary’s constitutional role in the clearance regime.

I. What Egan and Webster Actually Said

The Supreme Court’s 1988 decision in Department of the Navy v. Egan has become the cornerstone for judicial deference in security clearance cases. 14Open this footnote Close this footnote 14 See Steven Aftergood, A Critical Look at Navy v. Egan, Fed’n Am. Scientists (Nov. 16, 2009), https://perma.cc/‌99B5-UXUP (“Egan is regularly cited in support of strong, even unchecked executive authority and judicial deference to executive claims. It has become a cornerstone of national security law as practiced today.”). …Open this footnote Close There, a civilian Navy employee challenged the revocation of his security clearance—based on his past criminal convictions—before the Merit Systems Protection Board (MSPB). The MSPB initially held that it could review the merits of the underlying revocation, but the Supreme Court reversed, finding that the MSPB lacked statutory authority to second-guess the substance of security clearance determinations. 15Open this footnote Close this footnote 15 Dep’t of the Navy v. Egan, 484 U.S. 518, 526-27, 530 (1988) (explaining that granting a security clearance is a “sensitive and inherently discretionary judgment call”). …Open this footnote Close

The opinion in Egan is frequently misunderstood. The Court’s opinion only formally addressed the limits of statutory review under the Civil Service Reform Act, and properly read, it forecloses administrative review of the merits of clearance decisions—not judicial review of unconstitutional motive or process. 16Open this footnote Close this footnote 16 See id. at 530 (explaining that the Board may assess only whether clearance was in fact denied but “nothing in the Act . . . directs or empowers the Board to go further”). …Open this footnote Close Crucially, even when the clearance decision concerns an individual, what is unreviewable under Egan is the substance of the government’s risk assessment, not the legality of the process or purpose behind it.

Nonetheless, the “super-strong” deference that Egan articulated has made it one of the most executive-friendly decisions in modern public law. 17Open this footnote Close this footnote 17 See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo L.J. 1083, 1101 (2008). …Open this footnote Close Justice Blackmun’s observation in Egan that “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs” 18Open this footnote Close this footnote 18 Egan, 484 U.S. at 530. …Open this footnote Close has led lower courts to routinely decline to review the merits of clearance decisions beyond the MSPB context. 19Open this footnote Close this footnote 19 See Max Jesse Goldberg, Security-Clearance Decisions and Constitutional Rights, 132 Yale L.J.F. 55, 59-60 (2022) (observing that most courts treat Egan “as establishing a categorical bar on judicial review of clearance decisions” (citing Zeinali v. Raytheon Co., 636 F.3d 544, 549-50 (9th Cir. 2011); El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d 176, 183 (3d Cir. 2010); and Makky v. Chertoff, 541 F.3d 205, 212 (3d Cir. 2008))). …Open this footnote Close

Justice White’s dissent in Egan identified this doctrinal overreach that would later solidify in Lee v. Garland. Notably, he rejected the false premise that the government must choose between allowing an unchecked executive and disregarding national security concerns, explaining that “[i]f an agency fears that the Board will not be sufficiently sensitive to the national security implications of a discharge decision, the agency may foreclose external review” but “afford the employee an internal hearing into the reasons for his termination.” 20Open this footnote Close this footnote 20 Egan, 484 U.S. at 537 (White, J., dissenting) (footnote omitted). …Open this footnote Close Justice White thus offered a way to balance national security and due process—using internal procedures to protect information while still allowing employees to be heard.

The Supreme Court itself reinforced Egan’s limitations when applied to constitutional claims in Webster v. Doe, decided the same year. 21Open this footnote Close this footnote 21 486 U.S. 592 (1988). …Open this footnote Close In Webster, a longtime CIA employee was terminated after voluntarily disclosing that he was gay. 22Open this footnote Close this footnote 22 Id. at 595. …Open this footnote Close Although his job performance had consistently been rated “excellent or outstanding,” the CIA Director deemed his homosexuality a security risk. 23Open this footnote Close this footnote 23 Id. at 594-95. …Open this footnote Close The employee sued, alleging that his termination violated due process and equal protection. 24Open this footnote Close this footnote 24 Id. at 601-02. …Open this footnote Close The Supreme Court held that even where Congress appears to commit employment decisions to executive discretion, constitutional claims must still be reviewable absent an unambiguous bar. 25Open this footnote Close this footnote 25 Id. at 603 (“[W]here Congress intends to preclude judicial review of constitutional claims, its intent to do so must be clear.”). …Open this footnote Close The Court also noted that judges can use tools like limited discovery to protect classified information. 26Open this footnote Close this footnote 26 See id. at 604 (“[T]he District Court has the latitude to control any discovery process . . . so as to balance respondent’s need for access to proof . . . against the extraordinary needs of the CIA for confidentiality . . . .”). …Open this footnote Close

Thus, before Lee v. Garland, courts consistently reaffirmed that Egan deference and its bar on judicial review apply only to the substance of clearance determinations, not to constitutional violations in the motivation or process of revocation. 27Open this footnote Close this footnote 27 See, e.g., Garcia v. Pompeo, No. 18-CV-01822, 2020 WL 134865, at *7 (D.D.C. Jan. 13, 2020) (“The D.C. Circuit consistently has held that valid constitutional claims are not foreclosed by Egan.”); Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (implying that Egan “does not apply to actions alleging deprivation of constitutional rights”); U.S. Info. Agency v. Krc, 905 F.2d 389, 400 (D.C. Cir. 1990) (emphasizing that “judicial authority to consider the constitutional claims” is of “critical importance”); Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 289 (D.C. Cir. 1993) (“It is simply not the case that all security-clearance decisions are immune from judicial review.”). …Open this footnote Close Yet, by insulating clearance revocations from all constitutional review, the D.C. Circuit’s decision in Lee effectively endorses what legal scholars and commentators in the broader national security context warn is a “self-judging” regime, where the mere invocation of “national security” places government conduct beyond legal scrutiny. 28Open this footnote Close this footnote 28 Cf. TikTok Inc. v. Garland, 145 S. Ct. 57, 69 (2025) (holding that the Court “must accord substantial deference to the predictive judgments of Congress” in the national security context, even where First Amendment claims were raised against the so-called TikTok Ban); Matthew Kahn, Pretextual Protectionism? The Perils of Invoking the WTO National Security Exception, Lawfare (July 21, 2017) (noting that “individual countries are their own judges for the purposes of the national security exception”); Mohammad-Ali Bahmaei & Habib Sabzevari, Self-Judging Security Exception Clause as a Kind of Carte Blanche in Investment Treaties: Nature, Effect and Proper Standard of Review, 13 Asian J. Int’l L. 97, 100-03 (2023) (discussing how self-judging clauses in U.S. investment treaties are constructed to ensure broad discretion to define “essential security interests”). …Open this footnote Close

II. Lee v. Garland: Entrenching the Blind Spot

In district court, Jason Lee alleged that his clearance revocation was retaliatory and racially discriminatory, relying on pretextual justifications. 29Open this footnote Close this footnote 29 Lee v. Barr, No. 19-CV-2284, 2020 WL 3429465, at *1-2, *4-5 (D.D.C. June 23, 2020) (detailing Lee’s allegations in the complaint and proposed amendments). …Open this footnote Close The district court granted the government’s motion to dismiss, and on appeal, the D.C. Circuit—for the first time—held that none of the constitutional claims were justiciable. 30Open this footnote Close this footnote 30 Lee v. Garland, 120 F.4th 880, 888 (D.C. Cir. 2024). …Open this footnote Close Writing for the panel, Judge Katsas declared that “the reasoning of Egan triggers application of the political question doctrine, which forecloses review of constitutional claims.” 31Open this footnote Close this footnote 31 Id. …Open this footnote Close This marked a decisive break from what Judge Katsas himself had preserved as an open doctrinal question in the past. 32Open this footnote Close this footnote 32 See Palmieri v. United States, 896 F.3d 579, 590 (D.C. Cir. 2018) (Katsas, J., concurring) (observing “ongoing tension in the relevant precedents” and that “individuals denied clearances are increasingly invoking cases . . . to chip away at Egan”). …Open this footnote Close

Lee reinterprets Egan and Webster, erasing the distinction between substance and unconstitutional motive in clearance decisions. It also misapplies the political question doctrine. 33Open this footnote Close this footnote 33 See Baker v. Carr, 369 U.S. 186, 217 (1962) (applying the doctrine in cases including where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department” or “a lack of judicially discoverable and manageable standards” for resolution). …Open this footnote Close In Lee, the court argued that the political question doctrine “applies perhaps most vigorously to issues bearing on national security,” 34Open this footnote Close this footnote 34 Lee v. Garland, 120 F.4th at 889 (“Article II vests these sweeping powers in a single person in part because ‘[d]ecision, activity, secrecy, and dispatch’ are ‘essential’ to the protection of national security.”). …Open this footnote Close where authority is already textually committed to the political branches and federal courts may not second-guess discretionary judgements. 35Open this footnote Close this footnote 35 Id. at 891. …Open this footnote Close The court also emphasized the “untenable” nature of judicial review of non-technical proof or evidence that implicates state secrets, finding it “difficult to conceive of an area of governmental activity in which the courts have less competence.” 36Open this footnote Close this footnote 36 Id. at 890-91. …Open this footnote Close

However, this reasoning overlooks a critical distinction. While courts may lack competence to reevaluate the substance of a clearance judgment, they are well equipped to adjudicate whether a revocation adjudication process was initiated due to unlawful discrimination or retaliation. Article III courts were explicitly established to adjudicate such “cases and controversies as to claims of infringement of individual rights” 37Open this footnote Close this footnote 37 Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (elaborating that this oversight applies to claims of “unlawful action of private persons or . . . the exertion of unauthorized administrative power” (quoting Stark v. Wickard, 321 U.S. 288, 309-10 (1944))); see, e.g., United States v. Robel, 389 U.S. 258, 264 (1967) (striking down a law barring members of the Communist Party from working at defense facilities; holding that, even in matters of national security, Congress must respect constitutional rights; and remarking that “[i]t would indeed be ironic if, in the name of national defense, we would sanction the subversion” of First Amendment freedoms). …Open this footnote Close and courts already have tools such as limited discovery and the “state secrets privilege” to protect any sensitive national security information from being disclosed during litigation. 38Open this footnote Close this footnote 38 See supra note 26 and accompanying text; Jennifer K. Elsea & Edward C. Liu, Cong. Rsch. Serv., Report No. 47081, The State Secrets Privilege: National Security Information in Civil Litigation 24-25 (2022), https://perma.cc/‌FZ27-RTJ4 (discussing the three-step analysis used to resolve the government’s claim of the state secrets privilege in employment dispute cases). …Open this footnote Close As the Supreme Court warned in United States v. Robel, even in the realm of national security, constitutional protections do not evaporate: “[E]ven the war power does not remove constitutional limitations safeguarding essential liberties.” 39Open this footnote Close this footnote 39 Robel, 389 U.S. at 264 (quoting Home Bldg. & Loan Ass’n. v. Blaisdell, 290 U.S. 398, 426 (1934)). …Open this footnote Close Lee, however, effectively recast constitutional discrimination claims as impermissible, nonjusticiable incursions into core Article II authority.

The progression from President Trump’s 2018 memorandum revoking former CIA Director John Brennan’s security clearance to his 2025 memorandum rescinding the security clearances of dozens of political opponents illustrates the growing use of targeted security clearance revocations and the way Lee v. Garland has shifted the legal landscape. In 2018, Trump’s revocation of Brennan’s clearance was widely regarded as an abuse of power—an extraordinary, retaliatory act that broke from established process. 40Open this footnote Close this footnote 40 Julie Hirschfeld Davis & Michael D. Shear, Trump Revokes Ex-C.I.A. Director John Brennan’s Security Clearance, N.Y. Times (Aug. 15, 2018), https://perma.cc/‌2A7C-B9HD. Brennan never legally challenged the revocation of his security clearance, and officially, it was never revoked. See Goldberg, supra note 19, at 56. …Open this footnote Close And because this was six years before the decision in Lee, Brennan’s case was still arguably justiciable. By contrast, in 2025, Trump’s memo directing the revocation of security clearances for individual officials, including former Secretary of State Antony Blinken and members of the Biden family, 41Open this footnote Close this footnote 41 Donald J. Trump, Presidential Memorandum on Rescinding Security Clearances and Access to Classified Information from Specified Individuals (Mar. 22, 2025), https://perma.cc/‌7YFF-HJML. …Open this footnote Close is essentially doctrinally protected. Under Lee, such actions would now fall squarely within the realm of “nonjusticiable” executive discretion, even when overtly motivated by viewpoint discrimination or political animus.

III. A Fragile Workaround: The Perkins Coie Decision

In her original March 2025 TRO against EO 14230 regarding Perkins Coie, Judge Howell enjoined each section of the order except the section regarding security clearances. 42Open this footnote Close this footnote 42 See Perkins Coie TRO at 191 (enjoining Sections 1, 3, and 5 of the EO, but not Section 2, which revoked security clearances). …Open this footnote Close However, in her May 2025 ruling in Perkins Coie LLP v. Department of Justice, she carved out a narrow but meaningful exception to Lee v. Garland. Judge Howell held that Lee does not foreclose judicial review of “publicly announced general polic[ies] governing security clearances,” particularly when those policies apply categorically to a distinct class of individuals—such as all employees of a single firm. 43Open this footnote Close this footnote 43 Perkins Coie LLP v. U.S. Dep’t of Just., No. 25-716, 2025 WL 1276857, at *20 (D.D.C. May 2, 2025), appeal filed, No. 25-5241 (D.C. Cir. July 2, 2025). …Open this footnote Close She also emphasized that the Trump Administration’s rationale lacked the defined national security basis central to Lee 44Open this footnote Close this footnote 44 Id. at *21. …Open this footnote Close and, finally, that judicial review in this case would not require courts to second-guess predictive judgments about individual trustworthiness. 45Open this footnote Close this footnote 45 Id. at *19-20. …Open this footnote Close

Section 2(a) of EO 14230 directed agencies to suspend all active security clearances held by employees of Perkins Coie “pending a review of whether such clearances are consistent with the national interest.” 46Open this footnote Close this footnote 46 See Exec. Order No. 14,230, 90 Fed. Reg. 11781 (Mar. 11, 2025). …Open this footnote Close The government argued that, under Lee, such actions were categorically unreviewable. 47Open this footnote Close this footnote 47 Perkins Coie, 2025 WL 1276857, at *19. …Open this footnote Close Judge Howell disagreed. She highlighted Lee’s focus on an individual challenge to clearance revocation based on polygraph failures. 48Open this footnote Close this footnote 48 Id. at *20. …Open this footnote Close By contrast, EO 14230 offered no individualized assessment and cited “national interest” rather than “national security” as its rationale—a term the government was unable to clearly define. 49Open this footnote Close this footnote 49 Id. at *21. …Open this footnote Close Judge Howell found this distinction critical, warning that accepting the government’s view at any invocation of “national interest” would allow a “breathtaking expansion of executive power at the expense of the constitutionally mandated role of the judicial branch.” 50Open this footnote Close this footnote 50 Id. …Open this footnote Close Drawing on Webster, Judge Howell emphasized that a review of “general discriminatory polic[ies]” was permitted, and she limited Lee to “discretionary judgments regarding a particular employee’s security clearance.” 51Open this footnote Close this footnote 51 Id. at *20. …Open this footnote Close

While Judge Howell’s workaround is formally consistent with Webster’s recognition of the reviewability of general policies, it is an imperfect solution to the limitations of Lee and fails to capture the full range of individual constitutional harms that were not foreclosed by Egan. As the Perkins Coie opinion demonstrates, the form of review Judge Howell articulated is only triggered when the abuse is collective and explicit. If revocations are framed as individualized “trustworthiness” decisions, Lee leaves courts no basis to intervene, even when the motive is obviously discriminatory or pretextual. In doing so, it entrenches a constitutional asymmetry: The more selectively and surgically the executive branch targets individuals, the less likely courts are to intervene. Ironically, this doctrinal gap invites precisely the sort of stealthy constitutional violations the judiciary is meant to guard against—the legal system punishes overt, collective abuse with judicial scrutiny while rewarding strategic, individualized discrimination with near-total immunity.

Meanwhile, the Trump Administration has revoked clearances for over fifty-one individuals as of April 2025, including political opponents and former officials, often citing vague allegations of disloyalty or misconduct. 52Open this footnote Close this footnote 52 Eric Bazail‑Eimil, Trump Admin Formally Revokes a Raft of Biden Officials’ Security Clearances, Politico (Mar. 10, 2025, 5:17 PM EDT), https://perma.cc/‌BJ9P-Z94M (including revoking the clearances of all Biden officials who signed a 2020 letter arguing that “reports about the contents of a laptop that allegedly belonged to Hunter Biden, Joe Biden’s son, were ‘Russian disinformation’”). …Open this footnote Close These revocations, executed without transparent criteria or avenues for appeal, often come as individually targeted orders.

IV. The Stakes for Democracy

Lee v. Garland goes beyond misreading precedent to actively redefining the constitutional relationship between courts and the executive. The D.C. Circuit effectively declared that the moment “national security” is invoked, the judiciary must avert its gaze. As Shirin Sinnar has observed, national security deference is “[n]ot a single doctrine but a set of ideas” that can limit access to courts, reduce the standard of review, or entrench executive factual assertions as unassailable. 53Open this footnote Close this footnote 53 Shirin Sinnar, Courts Have Been Hiding Behind National Security for Too Long, Brennan Ctr. for Just. (Aug. 11, 2021), https://perma.cc/‌3HQS-XG7S. …Open this footnote Close This danger has pervaded institutions broadly, with more than sixty laws granting the president sweeping powers in the name of national security. 54Open this footnote Close this footnote 54 Amy L. Stein, A Statutory National Security President, 70 S. Fla. L. Rev. 1183, 1193 (2018). …Open this footnote Close Together with Lee, this ecosystem paves the way for an increasingly authoritarian executive, armed with tools to silence dissent from within.

Yet courts have the tools to intervene without intruding on legitimate security assessments. Courts can decline to second-guess security risk assessments while still reviewing clearance denials for discriminatory or retaliatory motive. 55Open this footnote Close this footnote 55 See Goldberg, supra note 19, at 71-72 (arguing for a “presubstantiat[ion]” threshold to permit only colorable constitutional claims to proceed, limiting impact on government resources and secrecy).The D.C. District Court has already evaluated the merits of a First Amendment claim without revisiting the underlying risk assessment. See, e.g., Garcia v. Pompeo, No. 18-CV-01822, 2020 WL 134865, at *8 (D.D.C. Jan. 13, 2020). …Open this footnote Close Even a kind of limited, narrow judicial review is powerful—the mere prospect of oversight can produce an “observer effect” that prompts the executive to temper excess in anticipation of scrutiny. 56Open this footnote Close this footnote 56 Ashley Deeks, The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference, 82 Fordham L. Rev. 827, 831 (2013). …Open this footnote Close

EO 14230 is not merely bureaucratic overreach; it is, as Judge Howell suggested during the initial hearing, a directive that “puts the cart before the horse” and mirrors “what happened during the Red Scare,” when group affiliations dictated access to state secrets. 57Open this footnote Close this footnote 57 Roger Parloff, A Reporter’s Notes of the April 23 Perkins Coie Hearing, Lawfare (Apr. 25, 2025, 10:27 AM), https://perma.cc/‌2M2K-7MV6. …Open this footnote Close The judiciary must not wait for another Paul Weiss deal or Perkins Coie injunction to confront the constitutional stakes. It should overturn Lee before it is used as a roadmap to punish political opposition. Judge Howell’s ruling, though important, is not a shield for the 2.5% of the civilian workforce holding national security clearances. 58Open this footnote Close this footnote 58 See Goldberg, supra note 19, at 70. …Open this footnote Close Reclaiming the space preserved by Webster and permitted by Egan is one small way courts can push back against authoritarian control.

Alternatively, if courts do not act to restore their review over allegations of unconstitutional motive, Lee may not only chill dissent but also serve as precedent for a broader erosion of constitutional protections wherever the executive invokes secrecy.

*J.D. Candidate, Stanford Law School, 2027. With gratitude to Professor Lawrence Marshall for the conversations that shaped this piece; to my parents, whose values instilled in me a commitment to justice and democracy; and to Vishnu Kannan, for his insightful edits and enduring friendship. Many thanks as well to the exceptional team of editors at the Stanford Law Review Online.