The Protection of Classified Information: The Legal Framework Page: 2 of 6
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role as Commander-in-Chief,4 the Supreme Court has repeatedly stated in dicta that "[the
President's] authority to classify and control access to information bearing on national
security ... flows primarily from this Constitutional investment of power in the President
and exists quite apart from any explicit congressional grant."5 This language has been
interpreted by some to indicate that the President has virtually plenary authority to control
classified information. On the other hand, the Supreme Court has suggested that
"Congress could certainly [provide] that the Executive Branch adopt new [classification
procedures] or [establish] its own procedures - subject only to whatever limitations the
Executive Privilege may be held to impose on such congressional ordering."6 In fact,
Congress established a separate regime in the Atomic Energy Act for the protection of
nuclear-related "Restricted Data."7
Congress has directed the President to establish procedures governing the access to
classified material so that no person can gain such access without having undergone a
background check.8 Congress also directed the President, in formulating the classification
procedures, to adhere to certain minimum standards of due process with regard to access
to classified information.9 These include the establishment of uniform procedures for,
inter alia, background checks, denial of access to classified information, and notice of
such denial.10 The statute also explicitly states that the agency heads are not required to
comply with the due process requirement in denying or revoking an employee's security
4 U.S. CONST., art. II, 2.
s Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting Cafeteria Workers v.
McElroy, 367 U.S. 886, 890 (1961). In addition, courts have also been wary to second-guess the
executive branch in areas of national security. See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1981)
("Matters intimately related to foreign policy and national security are rarely proper subjects for
judicial intervention."). The Court has suggested, however, that it might intervene where
Congress has provided contravening legislation. Egan at 530 ("Thus, unless Congress
specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the
authority of the Executive in military and national security affairs.")(emphasis added).
6 EPA v. Mink, 410 U.S. 73, 83 (1973).
7 42 U.S.C. 2011 et seq. In addition, the Invention Secrecy Act (codified at 35 U.S.C. 181
et seq.) authorizes the Commissioner of Patents to keep secret those patents on inventions in
which the government has an ownership interest and the widespread knowledge of which would,
in the opinion of the interested agency, harm national security. For a more detailed discussion
of these and other regulatory regimes for the protection of sensitive government information, see
CRS Report RL33502, Protection of National Security Information, by Jennifer K. Elsea; CRS
Report RL33303: 'Sensitive But Unclassified' Information and Other Controls: Policy and
Options for Scientific and Technical Information, by Genevieve J. Knezo.
8 Counterintelligence and Security Enhancement Act of 1994, Title VIII of P.L. 103-359 (codified
at 50 U.S.C. 435 et seq.). Congress has also required specific regulations regarding personnel
security procedures for employees of the National Security Agency, P.L. 88-290, 78 Stat. 168,
codified at 50 U.S.C. 831 - 835. Congress has also prohibited the Department of Defense from
granting or renewing security clearances for officers, employees, or contract personnel who had
been convicted of a crime (and served at least one year prison time) and for certain other reasons,
with a waiver possible only in "meritorious cases," P.L. 106-398 1, Div. A, Title X, 1071(a),
114 Stat. 1654, 10 U.S.C. 986.
9 50 U.S.C. 435(a).
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The Protection of Classified Information: The Legal Framework, report, December 21, 2006; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc805106/m1/2/: accessed November 14, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.