Congressional Displacement of the State Secrets Privilege and Article II

Congressional Displacement of the State Secrets Privilege and Article II

Legal Sidebari

Congressional Displacement of the State
Secrets Privilege and Article II
December 5, 2023
Supreme Court cases addressing the state secrets privilege are few and far between. Before the 2021 term,
when the applicability of the privilege was at issue in two cases, the Court had addressed it in only four
cases, the last one decided a decade earlier. One of the cases of the 2021 term—FBI v. Fazaga—was
historic in at least two respects of particular interest to Congress.
Initially, for the first time, the Court addressed the question whether a statute displaced the state secrets
privilege. The statute in question was the Foreign Intelligence Surveillance Act of 1978 (FISA), which
currently pending Senate and House bills would amend to provide stronger restrictions on executive
surveillance authority, including by expressly abrogating the state secrets privilege in civil suits alleging
violations of law related to government surveillance.
Second, this case appears to be the first in which most of the Justices on the current Court (all except for
Justice Ketanji Brown Jackson, who replaced Justice Stephen Breyer in 2022) have construed a federal
statute in a case involving executive claims of authority based on independent Article II authority related
to national security and foreign policy.
A previous Legal Sidebar summarized the background of and the Court’s decision in Fazaga, with a
particular focus on the statutory interpretation questions that the Court left unresolved. This Legal Sidebar
focuses on the Court’s analysis of the statutory interpretation question that the Court did resolve—namely,
whether Section 106(f) of FISA displaces the state secrets privilege—and the Court’s answer that it does
not. More specifically, this Sidebar (1) explains the Court’s doctrine on statutory displacement of federal
common law; (2) examines the Court’s displacement analysis in Fazaga and how it differs from the
Court’s traditional approach; and (3) discusses the potential implications for congressional and executive
power in the context of disclosure of national security information in litigation, and potentially in the
context of national security and foreign policy more broadly.
Statutory Displacement of Federal Common Law
The state secrets privilege is a federal common law doctrine that the Supreme Court began developing
early in U.S. history. The doctrine allows the executive to prevent disclosure of information in litigation
in certain circumstances when it assesses doing so would compromise national security.
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The Court has long recognized that federal statutes may “displace” federal common law and that the test
for determining when Congress has done so is whether the statute “speaks directly” to the issue. The
Court has further emphasized that the test is “not whether Congress ha[s] affirmatively proscribed the use
of federal common law.” The Court has contrasted its test for displacement of federal common law with
that for “preemption” of state law (whether statutory or common law), reasoning that federalism concerns
require that the test for preemption be more exacting than that for displacement:
[W]e start with the assumption that the historic police powers of the States were not to be superseded
by the Federal Act unless that was the clear and manifest purpose of Congress. . . . Such concerns
are not implicated in the same fashion when the question is whether federal statutory or federal
common law governs, and accordingly the same sort of evidence of a clear and manifest purpose is
not required. Indeed . . . we start with the assumption that it is for Congress, not federal courts, to
articulate the appropriate standards to be applied as a matter of federal law. (internal quotation marks
and citations omitted).
Thus, the Court has determined that “when Congress addresses a question previously governed by . . .
federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.”
In Fazaga v. FBI, the U.S. Court of Appeals for the Ninth Circuit applied the “speaks directly” test in
holding that the procedures governing the use of national security information required under
Section 106(f) displaced the state secrets privilege and should therefore be applied in the case. In
reversing the Ninth Circuit, the Supreme Court did not expressly indicate the standard it was applying,
but the Court’s reasoning and the authority it relied on suggest that it applied a standard more akin to that
for preemption of state law instead of the traditional test for displacement of federal common law.
The Supreme Court’s Displacement Analysis in
FBI v. Fazaga
In its unanimous decision in Fazaga holding that Section 106(f) does not displace the state secrets
privilege, the Court did not mention the “speaks directly” test. Instead, the first (and seemingly primary)
reason that the Court provided in support of its holding indicates that Congress must clearly state its
intention to displace the privilege: “The absence of any statutory reference to the state secrets privilege is
strong evidence that the availability of the privilege was not altered in any way.” This reasoning appears
to be a departure from the Court’s recognition in previous displacement cases that the question is “not
whether Congress ha[s] affirmatively proscribed the use of federal common law.”
In support of its determination that “the privilege should not be held to have been abrogated or limited
unless Congress has at least used clear statutory language,” the Court cited two cases: one involving the
impact of a federal statute on state law and the other the applicability of the canon of statutory
interpretation based on constitutional avoidance. As the Court did not elaborate on its reasoning in citing
these cases beyond short citation parentheticals, the reader is left to speculate that the Court may have
sought to avoid a constitutional problem arising from interference with the executive’s inherent Article II
authorities related to national security and secret information.
As the Court points out, such interference with Article II authorities is one of the arguments that the
government relied on. In its brief, the government advanced a clear-statement requirement along the lines
that the Court ultimately adopted:
[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to
intrude upon the authority of the Executive in military and national security affairs. That approach
reflects the judgment that Congress does not bring about a significant change in the Executive
Branch’s power to protect the national security by happenstance, or by securing the President’s
approval of a bill with that unstated effect. The reluctance to infer such a change should only be

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amplified when the question concerns the elimination of a privilege inherent in the constitutional
design and acknowledged since our Nation’s founding. (internal citations and quotation marks
omitted) (alteration in original).
Although the Court stated that it did not need to decide the question “whether the state secrets privilege is
rooted only in the common law (as respondents argue) or also in the Constitution (as the Government
argues),” the clear-statement rule that the Court applied instead of the traditional displacement test
appears to rest on the conclusion that, at the very least, a congressional failure to expressly abrogate the
privilege may raise constitutional problems based on the executive’s inherent authorities related to
national security.
The question that remains is whether the Court’s reliance on the interpretive canon of constitutional
avoidance implies merely that a construction of a statute as displacing the state secrets privilege without a
clear statement may be constitutionally problematic or that displacement—even if express—might
unconstitutionally infringe on executive power.
Considerations for Congress
At the very least, the Court makes clear in Fazaga that if Congress wishes to displace the state secrets
privilege in FISA or any other statute involving procedures for the disclosure of secret information in
litigation, it should do so expressly (as the currently pending bills amending FISA would do).
If Congress were to enact such legislation, there is a possibility that, in the event that a court rejects the
government’s assertion of the privilege on the ground that the statutory procedures supersede it, the
government would challenge Congress’s abrogation on the ground that it impermissibly interferes with
the executive’s independent Article II authorities. The government made such an argument in Fazaga in
addition to its argument that a clear statement was required. As described, the Court’s brief opinion in the
case seems to leave this question open.
More broadly, it is worth considering the import of the Court’s reliance on the constitutional avoidance
canon in Fazaga in light of the Court’s previous determination that a case involving the separation of
powers in the area of foreign policy did not raise a nonjusticiable political question because the resolution
depended on the determination of whether a statute was unconstitutional. This combination could indicate
that the Court would be willing to hear a case involving a challenge to a statute expressly abrogating the
state secrets privilege or otherwise expressly restricting executive authority in foreign affairs and national
security and that the Court would take executive claims of independent Article II authority seriously.

Author Information

Karen Sokol

Legislative Attorney

Disclaimer

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