In the new Consolidated Appropriations Act of 2017 (section 8009), Congress mandated that no new, highly classified special access programs may be created without 30 day advance notice to the congressional defense committees.
But in signing the bill into law last Friday, President Trump said he would not be bound by that restriction.
“Although I expect to be able to provide the advance notice contemplated by section 8009 in most situations as a matter of comity, situations may arise in which I must act promptly while protecting certain extraordinarily sensitive national security information. In these situations, I will treat these sections in a manner consistent with my constitutional authorities, including as Commander in Chief,” he wrote in a May 5 signing statement.
More generally, Trump suggested that his power to classify national security information is altogether independent of Congress. “The President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority,” he wrote.
This is a paraphrase of language in the 1988 US Supreme Court opinion in Department of the Navy v. Egan (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.”)
But left unsaid in President Trump’s signing statement was that the Supreme Court has also held that Congress could modify existing classification procedures or create its own secrecy system.
Thus, in EPA v. Mink (1973), the Supreme Court stated: “Congress could certainly have provided that the Executive Branch adopt new [classification] procedures, or it could have established its own procedures — subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.”
And, as noted by Jennifer Elsea, Congress has in fact legislated a classification regime for nuclear weapons-related information in the Atomic Energy Act.
So the newly legislated notification requirements concerning special access programs appear to be well within the constitutional authority and power of Congress.
The Intelligence Authorization Act for FY 2017 was incorporated into the Consolidated Appropriations Act as “Division N” and enacted into law.