The Critical Nature of Sunset Provisions in National Security Legislation
In the wake of the recent reauthorization of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), Footnote #1 content: See FISA Amendments Act of 2008, Pub. L. No. 110-261, §§ 702, 403(b), 122 Stat. 2436, 2438, 2474 (codified as amended at 50 U.S.C. § 1881); Reforming Intelligence and Securing America Act, Pub. L. No. 118-49, § 19(a), 138 Stat. 862, 891 (2024). the role of temporary legislation in the national security sphere is once again at issue. Revelations of misuse of the surveillance authority by individuals within the Federal Bureau of Investigation (FBI) raised widespread alarm and inspired calls to revoke the authority entirely. Footnote #2 content: See Juhi Doshi, What Is Section 702? Congress Is Debating the Controversial Surveillance Power, NBC NEWS (July 31, 2023, 1:14 PM), https://www.nbcnews.com/politics/congress/section-702-foreign- intelligence-surveillance-act-congress-what-know-rcna96259 [https://perma.cc/U6RD-F9YQ]. In December 2023, the authority expired and was renewed through April 2024— and after a nail-biting four months, it was renewed once again in the early hours of the morning after it expired. Footnote #3 content: See National Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, § 7902, 137 Stat. 136, 1108 (2023); Reforming Intelligence and Securing America Act § 19(a); Preston Marquis, FISA Section 702 Reauthorized for Two Years, LAWFARE (Apr. 30, 2024, 8:01 AM), https://www.lawfaremedia.org/article/fisa-section-702-reauthorized-for-two-years [https://perma.cc/JU5Y-TZXK]. These events remind us that national security authorities have a special tendency to expand and become entrenched within the Executive Branch. However, they also remind us of the benefits of periodically coming together to vigorously debate the value and role of such authorities, review them, and revise them as necessary to reflect the interests of the people. Part I of this Note will explain the power imbalance created by national security legislation as a result of extreme judicial deference, congressional timidity, executive power-guarding, and lack of transparency. Part II will demonstrate how the inclusion of a sunset provision in a grant of national security authority to the President helps solve this power imbalance. By exchanging the presumption of continuance for one of discontinuance, a sunset provision leverages congressional inaction in favor of repealing the authority. This puts the burden of justifying the continued existence of the authority where it should be—on the Executive—and the power to revoke it where it should be—with a simple majority of Congress. This mitigates the tendency of Congress to avoid difficult political questions and the tendency of presidents to power-guard in the national security sphere. Moreover, it improves transparency and accountability in the Executive Branch by forcing the Executive to participate in a national deliberative process over the ongoing utility of national security tools. Part III will then analyze three case studies demonstrating these principles. An examination of the 2001 and 2002 Authorizations for the Use of Military Force (AUMFs) reveals that, in practice, failure to include a sunset provision enables congressional avoidance and presidential power-guarding. An analysis of the reauthorization process for FISA Section 702 demonstrates that a sunset provision ensures a robust public debate over the merits of an authority that includes the transparent, genuine, and meaningful participation of the Executive Branch. Part IV will respond to some counterarguments. Although there is the potential for congressional dysfunction as a result of a sunset provision, this risk merely reflects the institutional risks of democracy and is outweighed by the power-balancing and deliberative benefits. Further, concerns that temporary legislation enables legislative overreach are unwarranted because they assign a causal relationship where only a correlation exists. This Note concludes that Congress should include sunset provisions in national security authorities to allow for the meaningful periodic reconsideration of the optimal balance of security and liberty by all stakeholders.
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