Chapter 7 Security Clearances and Background Investigations

Security clearances are a prerequisite for serving in senior positions in the Executive Branch. Several million Americans have security clearances; hundreds of thousands have security clearances at the highest level.

While formally grounded in the national security authority of the President, recent clearance adjudications have suggested that the traditional norms governing security clearances may be under stress. Security clearances began as a system of protecting access to classified information, but clearances have now become “suitability” filters for Executive Branch appointees. Background investigations as part of the clearance process involve extensive disclosure and related due diligence, and inquiries as part of the determination as to whether to grant clearances probe many areas that are only tangentially related to access to classified information. 

Clearance decisions are guided by Executive Order 12968 and other Executive orders, the SF-86 process, and agency regulations. In practice, clearance determinations are often opaque, discretionary, and difficult to challenge, turning on assessments of judgement, reliability, and character. Drug use functions as a key screening factor, reflecting a broader institutional emphasis on rule-following and risk mitigation.

This discretionary framework received firm constitutional support in Navy v. Egan, where the Supreme Court affirmed the President’s Article II authority over classified information and the grant or revocation of security clearances and confirmed that this is an area of limited judicial oversight. The more nuanced approach to Executive Branch authority in Greene v. McElroy has received almost no attention. More recent cases growing out of sanctions against law firms may add to the law in this area.

This deferrence has led to many concerns that seemingly extraneous factors—political views, social affiliations, past clients—may be impacting security clearance determinations. In recent Executive actions, clearance revocations have been employed to punish attorneys, civil servants, or appointees. The use of clearance powers for such purposes implicates concerns about First Amendment protections, professional independence, and the integrity of our legal process. Recent court decisions in reaction to those Executive actions suggest that unfettered presidential authority in this area may be challenged when clearance decisions are used to retaliate against lawful activity or political speech.