The number of federal departments and agencies focused on countering threats to the United States, protecting soldiers and civilians, strengthening the country’s physical and digital infrastructure, and defending the political and constitutional structure from (primarily foreign) attack dwarfs the number in existence when Congress introduced the Administrative Procedure Act (APA). That statute sought to prevent the country from slipping into authoritarianism while ensuring that the United States retained the flexibility necessary for its own defense. It included exceptions related to military authority and foreign affairs alongside substantive and procedural requirements. Despite the carveouts, the APA has played an inextricable role in regulating the “National Security Administrative State” (NSAS), comprised of executive branch entities directed by Congress and the President to promulgate legally binding instruments to secure national security at home and abroad. Many of its provisions have a profound impact on the rights to life, liberty, and property; statutory and constitutional interpretation; and citizens’ First Amendment right of access to government information. Yet the structure of the NSAS and the APA’s role in limiting government overreach have flown under the radar, with treatises and scholarship all but ignoring it.

This Essay breaks new ground, for the first time defining and providing an overview of the NSAS. While many instruments remain classified, an increasing number are subject to the APA. Courts have narrowed the foreign affairs exception and, in relation to the military exemption, become more sympathetic to servicemember claims. The APA’s integration, moreover, is likely to grow. The Supreme Court’s reasoning in Loper Bright Enterprises v. Raimondo is consistent with the APA’s standards of review and comes at a time when courts have become less willing to grant deference in areas touching on national security. In light of the profound impact of the national security infrastructure on individual rights, the time is ripe to take account of the NSAS as an administrative entity.

An Appendix to the Article is available here.

* J.D., Ph.D., Scott K. Ginsburg Professor of Law and National Security, Georgetown Law. Special thanks to Lisa Heinzerling and Eloise Pasachoff and to the Georgetown Law Faculty Workshop for helpful comments on the Essay.