The security clearance process has long lived in a constitutional gray zone, deeply consequential for individual careers, yet firmly rooted in executive branch authority. Recent reporting on the restoration of attorney Mark Zaid’s security clearance has renewed attention on the role of the judicial branch in clearance disputes, and just as importantly, on the legal boundaries that still constrain that role.
At the center of those boundaries is a 1988 Supreme Court decision: Department of the Navy v. Egan. In that case, the Court held that security clearance determinations are a core executive function tied directly to the President’s Article II powers as commander in chief. Absent explicit direction from Congress, courts may not review the merits of clearance decisions, meaning judges generally cannot second-guess whether someone should or should not have access to classified information.
That precedent remains the law of the land. And as long as Egan stands, security clearance determinations will almost certainly remain the purview of the executive branch and administered by agencies, adjudicated internally, and reviewed only through executive processes. This is why, despite decades of litigation, courts have consistently declined to act as clearance appeal boards.
But Egan does not place the clearance process entirely beyond judicial reach.
Where courts can intervene and increasingly do is when a clearance action is alleged to violate constitutional rights or fundamental procedural protections. The judiciary’s role is not to decide whether an individual poses a security risk, but to determine whether the government acted lawfully in reaching its decision. That distinction is critical.
In the Mark Zaid case, a federal judge did not re-adjudicate his suitability for access to classified information. Instead, the court focused on whether the revocation of his clearance was retaliatory and whether the process departed from established norms in a way that implicated First Amendment and due process concerns. In other words, the court policed the process and motive, not the security judgment itself.
This is the narrow but essential space the judiciary occupies in the clearance ecosystem: enforcing constitutional guardrails while largely deferring to executive expertise on national security risk.
Could that balance ever change? In theory, yes, but only in limited and challenging ways.
Egan could be overturned or narrowed in two primary ways. First, the Supreme Court itself could revisit the decision in a future case and conclude that clearance determinations are not as categorically immune from judicial review as previously held. That would likely require a case presenting clear evidence of systemic abuse or a compelling conflict between executive authority and constitutional rights.
Second, Congress could act. The Egan decision explicitly noted the absence of statutory authorization for judicial review. If Congress were to pass legislation granting courts limited authority to review certain aspects of clearance decisions, particularly procedural fairness or retaliatory actions, that statutory framework could alter the current balance without dismantling executive control altogether.
Until then, Egan continues to define the outer boundary of judicial involvement.
The takeaway for cleared professionals, employers, and policymakers is this: the courts are not replacing the executive branch in security clearance decisions, nor are they likely to anytime soon. But they remain a critical backstop when the clearance process is used in ways that appear arbitrary, discriminatory, or constitutionally suspect.
National security demands secrecy and discretion. Democracy demands accountability. The judicial branch helps the government enforce its obligation to both.
