Executive Control of Official Facts and the Limits of Constitutional Accountability

by Jacob Davenport, Citations Editor, University of Cincinnati Law Review Vol. 95

I. Introduction

In the summer of 2025, a federal District Court in Oregon temporarily halted portions of Immigration and Customs Enforcement (ICE) operations after concluding that federal officers conducted warrantless arrests without individualized probable cause.¹ The litigation immediately raised familiar constitutional questions concerning the Fourth Amendment, executive enforcement authority, and judicial oversight.² Less obvious was the institutional dynamic operating beneath the dispute. Federal officials were not merely enforcing existing laws. They were relying upon factual determinations generated within executive institutions to justify the exercise of government authority.³

Modern constitutional law is built on a foundational assumption that is rarely stated explicitly but deeply embedded in doctrinal practice: that facts exist independently of institutions that apply legal rules to them.⁴ Whether a crisis constitutes a national emergency, a threat is imminent, a regulation is necessary, or an asserted injury is sufficiently concrete often depends upon executive-generated data, intelligence assessments, statistical models, scientific methodologies, and administrative judgments.⁵ These determinations do more than inform executive decision-making, they establish the factual predicates that activate statutory and constitutional authority, define the scope of judicial review, and shape the limits of congressional oversight.⁶ As such, in many contexts, the Executive Branch is no longer simply applying law to existing facts. Instead, the Executive Branch is determining the official facts to which the law applies.⁷

The Oregon example illustrates this institutional reality as the controversy exposed this constitutional dynamic. Specifically, the Executive Branch did not merely decide how to enforce federal immigration law. Executive agencies also determined the factual conditions that justified enforcement, creating the informational foundation upon which executive authority rested.⁸ Judicial review occurred only after those official facts were generated within executive controlled systems.

This dynamic extends beyond immigration enforcement. Administrative agencies routinely determine the factual conditions triggering regulatory authority.⁹ Intelligence agencies evaluate threats that justify surveillance, military operations, or emergency measures.¹⁰ Public health agencies determine whether disease outbreaks warrant extraordinary government responses.¹¹ Environmental agencies establish scientific findings that trigger statutory obligations.¹² Across these diverse contexts, executive institutions exercise substantial influence over the production of official facts that become legally significant throughout the constitutional system.¹³

As such, this Post argues that executive control over official fact production constitutes a distinct and under-theorized form of constitutional authority which is defined as epistemic executive power.¹⁴ Epistemic executive power describes the Executive Branch’s capacity to construct, stabilize, authenticate, and disseminate the official facts that determine when legal rules apply, who may invoke them, and how they are enforced.¹⁵ Unlike traditional understandings of executive authority, which emphasize enforcement discretion, policy making, or command authority, epistemic executive power operates upstream from legal doctrine.¹⁶ It shapes the informational environment within which constitutional actors evaluate legality, allocate authority, and resolve disputes and undermines meaningful separation-of-powers limits.¹⁷

II. Background

This Section situates that American public law assumes that facts exist independently of institutions and that legal doctrine simply applies to a set of preexisting facts.¹⁸ It outlines this assumption is embedded in constitutional adjudication, administration, and legislative oversight, each of which treats “facts” as an input rather than a site of governance.¹⁹ It demonstrates that modern government increasingly departs from this assumption as executive agencies routinely generate, authenticate, and disseminate the official facts upon which constitutional authority depends.

A. Constitutional Structure and Executive Control of Information

The Constitution does not explicitly allocate authority over fact production. Article II vests executive power in the President, but it does not define the epistemic infrastructure of governance. From the early Republic forward, Presidents claimed control over sensitive information, particularly in diplomacy and national security because effective execution depended on confidentiality and centralized judgment.²⁰ These assertions helped establish institutional expectations about which categories of information are presumptively executive and which disputes courts regard as unsuitable for judicial resolution.²¹

Early conflicts over diplomatic correspondence reveal that information control was understood as implicating separation-of-powers concerns rather than mere administrative convenience.²² During the Jay Treaty dispute, President Washington refused to comply with the House’s request for negotiating papers, framing disclosure demands as inconsistent with the Executive Branch’s constitutional role in foreign affairs.²³ Washington’s position contributed to an institutional norm that executive control over certain categories of foreign affairs information rests on structural constitutional reasoning, notwithstanding the absence of explicit textual specification.²⁴ Similar structural claims were later invoked in disputes concerning war powers, intelligence, and executive deliberations.²⁵

B. Standing Doctrine and Epistemic Access

Standing doctrine regulates access to judicial review through requirements of fact, causation, and redressability.²⁶ Each requirement depends on factual information that may be controlled by the Executive Branch. In Lujan v. Defenders of Wildlife, environmental organizations challenged a federal regulation interpreting the Endangered Species Act, alleging that it increased the risk of harm to endangered species they intended to observe.²⁷ The Court held that the plaintiffs lacked standing because they failed to demonstrate a concrete injury rather than speculative harm.²⁸ This requirement assumes access to reliable information about government conduct and its effects. However, in many modern contexts, such information is partially or fully controlled by the Executive Branch.

This dynamic is more pronounced in national security contexts. In Clapper v. Amnesty International, the Court denied standing to the plaintiffs challenging surveillance authorities because their alleged injuries were speculative.²⁹ The speculative character of the injury resulted from the government’s refusal to confirm whether the plaintiffs were subject to surveillance.³⁰ The Executive Branch’s informational control contributed as a barrier to the Court’s reliance as a basis for denying jurisdiction.³¹ As such, standing doctrine operates as an epistemic gatekeeping mechanism.³² It does not merely evaluate harm; it structures access to the informational conditions necessary to demonstrate harm.³³ Where the Executive Branch controls the relevant facts, it indirectly controls access to judicial review.³⁴

C. Administrative Law and the Constructed Record

Administrative law structures appear procedurally neutral but the exercise of executive epistemic authority is significant because courts evaluate an agency’s reasoning but rarely reconstruct the factual record on which that reasoning rests.³⁵ Executive agencies operating under presidential supervision determine which facts enter the record, how those facts are categorized, and which uncertainties are included or excluded.³⁶ The consequence of this is that judicial review becomes derivative rather than independent.³⁷ Courts do not reconstruct factual reality; they evaluate whether agency reasoning aligns with the executive’s epistemically constructed record.

For example, in Citizens to Preserve Overton Park v. Volpe, the Court required a “searching and careful” review of agency action, but reaffirmed that the review must be based on the record before the agency.³⁸ The Court emphasized that judicial injury is not an invitation to substitute judgment or independently generated facts,³⁹ and subsequent cases reiterated this holding.⁴⁰ Motor Vehicle Manufacturers Association v. State Farm echoed the requirement of reasoned decision-making by insisting that executive agencies examine relevant data and articulate satisfactory explanations for their actions.⁴¹ However, State Farm did not authorize courts to reconstitute the factual findings underlying agency action.⁴² Instead, it proceeded on the premise that agencies legitimately control the informational inputs into their decision-making process.⁴³ Thus, as long as an executive agency explains itself clearly within its chosen evidentiary framework, judicial review remains deferential.⁴⁴

D. Information Exclusion in National Security Contexts

The most complete expression of epistemic executive power occurs in national security doctrine, where information is not merely filtered or bounded but excluded entirely. Long before modern invocations of the state secrets privilege, the Supreme Court held that certain disputes implicating national security are categorically beyond judicial reach because their very subject matter depends on secrecy.⁴⁵ Specifically, in Totten v. United States, the Court held that cases arising out of secret espionage agreements cannot proceed because public policy forbids the maintenance of any espionage suit in a court of justice; the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.⁴⁶ Under this standard, secrecy operates not merely as an evidentiary limit but as a categorical bar to factual development.⁴⁷ In United States v. Reynolds, the Court recognized the state secrets privilege, allowing the Executive Branch to withhold evidence when disclosure would harm national security.⁴⁸ Whereas, in Department of the Navy v. Egan, the Court held that security-clearance determinations are committed to executive discretion and largely unreviewable.⁴⁹ The Court’s reliance on institutional competence reasoning reflects a pattern: when legality turns on uncertain threats or predictive risk, judicial review is limited.⁵⁰

E. The Institutionalization of Official Executive Fact Production

Viewed collectively, these constitutional doctrines reveal a common institutional development, that modern executive agencies occupy the center of governmental fact production.⁵¹ They collect information, define methodologies, assess risk, authenticate intelligence, establish scientific conclusions, and produce the official records upon which constitutional and statutory authority frequently depend.⁵² Through their collection, analysis, modeling, assessment, enforcement priorities, and classification decisions, executive agencies shape the factual environment within which courts operate and legal decisions are made.⁵³ As such, the modern executive state does more than execute the law: it increasingly constructs the factual predicates that determine when legal rules apply.⁵⁴

III. Discussion

This Section advances the central contribution of this Post by recommending a framework for epistemic accountability designed to constrain executive control over the construction of official facts. The analysis that follows demonstrates how existing doctrine fails to regulate fact production and culminates in an operational reform package that identifies specific points of intervention.

A. Epistemic Executive Power as Constitutional Authority

Traditional separation-of-powers doctrine assumes that executive officials exercise authority by statutes enacted by Congress and interpreted by the Judiciary.⁵⁵ Under this familiar model, facts exist independently of executive action, while constitutional law determines the legal consequences that follow.⁵⁶ Modern governance increasingly departs from that assumption. More often than not, the Executive Branch now collects the information, establishes the methodologies, defines the categories, measures uncertainty, and evaluates the risks that determine whether statutory and constitutional authority exists.⁵⁷ Whether an emergency exists, whether a threat is imminent, whether enforcement is necessary, and whether statutory conditions have been satisfied frequently depends on executive-generated information and facts which creates the foundation that activates the legal authority for a call to action.⁵⁸

This distinction is significant because epistemic executive power differs fundamentally from traditional executive power. While policy discretion concerns choices among legally available alternatives, epistemic discretion concerns determining if the factual conditions necessary for legal authority exist before those choices are made. Thus, the Executive Branch’s creation of information influences not only how government power is exercised, but if that power may be exercised at all.

Recent presidential administrations illustrate this dynamic across multiple policy areas. For example, President Bush’s use of force in Iraq was based on executive intelligence assessments asserting the existence of weapons of mass destruction.⁵⁹ Whereas President Obama’s drone framework used to target persons who constituted an imminent threat were based on classified criteria not subject to external review.⁶⁰ Moreover, during President Trump’s first administration, executive-generated metrics were used to influence how agencies defined enforcement priorities and framed migration trends.⁶¹ Conversely, President Biden relied on similar control over metrics, classifications, and enforcement priorities to define migration patterns and policy responses along the Southern Border.⁶² Lastly, this dynamic was illustrated during President Trump’s second administration as immigration enforcement operations in Oregon were halted because ICE arrests were conducted without sufficient individualized probable cause.⁶³ Contemporary reporting described agents relying on generalized criteria rather than particularized factual determinations. Collectively, these examples reveal a deep problem because the asserted factual conditions for enforcement were generated within executive-controlled systems rather than independently established systems, allowing the Executive Branch to define the basis of its own authority.⁶⁴

This phenomenon exposes an important limitation within existing constitutional doctrine. Justice Jackson’s tripartite framework in Youngstown Sheet & Tube Co. v. Sawyer, remains the dominant outline for evaluating presidential authority because it measures executive action against congressional authority.⁶⁵ However, Youngstown presumes that the factual conditions activating statutory authority already exists by asking if executive authority is authorized.⁶⁶ It does not ask if the conditions giving rise to that authorization have been satisfied.

Consequently, executive control over official facts operates outside traditional separation-of-powers analysis. The Executive Branch may remain formally within statutory authority because they control the factual determinations that establish whether statutory authority exists in the first place.⁶⁷ Therefore, constitutional doctrine regulates executive conduct while devoting little attention to executive control over the informational foundations of legality.⁶⁸

B. Structural Circumvention of Judicial Review

Epistemic executive power constrains judicial review at three interlocking mechanisms: (1) judicial filtering, (2) evidentiary confinement, and (3) informational exclusion. These mechanisms do not operate independently. Instead, they reinforce one another to produce a system in which judicial review is formally available but substantively dependent on executive-controlled epistemic inputs.

1. Jurisdictional Filtering and Standing Doctrine

Standing doctrine operates as the primary jurisdictional gateway to federal courts.⁶⁹ Article III of the U.S. Constitution requires plaintiffs to establish injury in fact, causation, and redressability. Each requirement depends on factual assertions about government conduct and its effects.⁷⁰ Where those facts are accessible, standing doctrine functions as a neutral gatekeeping mechanism. Where facts are not accessible, standing becomes structurally dependent upon executive disclosure.⁷¹ This dependency is especially acute in regulatory and national security contexts where the Executive Branch controls surveillance data, enforcement metrics, or predictive risk assessments.

In such cases, plaintiffs face a structural epistemic asymmetry. They must demonstrate injury without access to the informational basis necessary to prove it.⁷² Courts often characterize the resulting uncertainty as speculation.⁷³ Institutionally, however, the uncertainty results from executive control over official facts.⁷⁴ The effect is cumulative because executive epistemic control of facts becomes jurisdictional control. By shaping what facts are knowable, the Executive Branch indirectly shapes who may establish judicial standing.⁷⁵

2. Evidentiary Confinement and Administrative Record Review

Even when standing is satisfied, epistemic executive power continues to operate at the merits stage through administrative record doctrine. Judicial review under the Administrative Procedure Act is confined to the record compiled by the agency. This structure appears procedurally. However, it is epistemically significant because agencies determine which facts enter the record, how those facts are categorized, and which uncertainties are included or excluded.⁷⁶ Courts then evaluate whether agency reasoning is arbitrary or capricious based on this executive curated informational foundation.⁷⁷

The consequence is that judicial review becomes derivative rather than independent because courts do not reconstruct factual realty.⁷⁸ Instead, they evaluate whether agency reasoning coheres with an epistemically pre-structured record.⁷⁹ As a result, administrative law proceeds with what may be described as bounded epistemic review: courts supervise reasoning but not the production of the factual basis on which reasoning depends.⁸⁰

3. Informational Exclusion in National Security Contexts

The most complete expression of epistemic executive power occurs in national security doctrine, where information is not merely filtered or bounded but excluded entirely.⁸¹ Through the state secrets privilege, classification regimes, and related doctrines, the Executive Branch may prevent disclosure of information essential to adjudication.⁸² In FBI v. Fazaga, the Court reaffirmed that even detailed statutory schemes do not displace the privilege absent explicit congressional intent.⁸³

This creates a category of cases in which legal rights exist in theory but are practically nonjusticiable because the evidentiary basis for adjudication is inaccessible. Unlike standing or administrative review, information exclusion does not merely constrain judicial reasoning. It eliminates epistemic conditions necessary for adjudication entirely because the courts must exclude facts the executive deems inaccessible for national security reasons.⁸⁴ As a result, epistemic executive power can function as a structured circumvention of judicial review from a national security perspective.⁸⁵

C. Institutional Consequences of Epistemic Executive Power

The effect of these doctrinal structures is the emergence of a system where Executive control over facts operates as a form of structural constitutional authority.⁸⁶ Specifically, legal predictability depends on stable relationships between legal rules and factual conditions.⁸⁷ When factual conditions are produced within the Executive Branch and are not externally verifiable, predictability becomes contingent on institutional transparency and not legal clarity.⁸⁸ This produces a shift from rule-based governance to information-dependent governance where legal outcomes determine access to epistemic information controlled by the Executive Branch and not legal norms.⁸⁹

Epistemic executive power also produces inequalities regarding access to legal remedies.⁹⁰ For example, parties with access to executive data, metrics, models, or risks assessments can effectively satisfy legal thresholds compared to those without such access.⁹¹ This creates a system in which access to justice is partially dependent by access to executive controlled-data.⁹² As such, legal rights become unevenly enforceable depending on a party’s access to governmental controlled information.⁹³

Traditional transparency doctrines emphasize disclosure of outcomes or data.⁹⁴ However, epistemic executive power operates at the level of methodology and not output.⁹⁵ When methodological choices are not disclosed, transparency becomes insignificant.⁹⁶ The public sees outcomes without understanding the epistemic processes that produced them. This limits meaningful accountability even where formal disclosure requirements are satisfied.

D. Epistemic Accountability: Institutional and Doctrinal Responses

Addressing epistemic executive power requires more than doctrinal refinement. It requires institutional redesign aimed at decentralizing fact production. To begin, courts can begin treating informational asymmetry as a constitutionally relevant factor in standing and review analysis.⁹⁷ Where plaintiffs face structural barriers to accessing facts controlled by the Executive Branch, courts may need to recalibrate evidentiary thresholds or permit limited inferential standing.⁹⁸ This does not eliminate standing doctrine; instead, it recognizes that epistemic barriers can distort its operation.⁹⁹

Moreover, Congress can mitigate epistemic production by strengthening independent fact-generating institutions. Agencies such as the Congressional Budget Office, Government Account Office, and inspector generals can be expanded to provide alternative epistemic factual baselines. By generating independent data streams, Congress reduces reliance on executive-produced facts and restores contestability to legislative oversight.

Within the Executive Branch, fact production can be structurally separated from enforcement authority. Independent statistical agencies, scientific advisory boards, and insulated data authorities can reduce the risk that epistemic production becomes aligned with enforcement incentives. While such separation cannot eliminate executive influence, it can reduce epistemic consolidation.

Lastly, transparency requirements must be reoriented toward methodological disclosure. Raw data alone is not sufficient to evaluate epistemic claims. Effective transparency requires disclosure of assumptions, modeling techniques, uncertainty ranges, and interpretive frameworks. Absent such disclosures, transparency remains formal rather than substantive.

IV. Conclusion

Presidential control over official facts constitutes a distinct and consequential form of constitutional authority. Epistemic executive power operates not by violating law, but by shaping the factual predicates upon which law depends. The central constitutional challenge is not simply doctrinal miscalibration, but the absence of institutional mechanisms capable of contesting executive-defined factual baselines.

The analysis demonstrates that this form of power is structural and embedded across standing doctrine, administrative law, national security secrecy, and statutory trigger frameworks. In each domain, the Executive Branch controls the informational inputs against which legal constraints operate and benefits from that control when oversight is attempted. The rule-of-law costs of epistemic power are significant. When legal application depends on executive-defined baselines, predictability weakens, equality becomes contingent on informational access, and transparency loses force absent insight into methodological foundations. Addressing epistemic executive power does not require disabling executive governance or rejecting expertise. It requires treating informational control as constitutionally important. Courts can account for epistemic asymmetry in justiciability and review. Congress can legislate with greater attention to methodology, verification, and independent fact generation. Institutional design can mitigate epistemic consolidation through separation and transparency.

Ultimately, constitutional accountability in an information-dependent age depends on shared and contestable factual foundations. When control over official facts becomes an instrument of authority, law risks losing its capacity to function as a meaningful constraint by leaving epistemic foundations untouched. As such, restoring meaningful constraints requires confronting not only what the Executive Branch does, but how it defines the world in which legality is judged.

Cover Photo by János Venczák on Unsplash

Author

Jacob Davenport

Jacob Davenport is a third-year law student at the University of Cincinnati, Donald P. Klekamp College of Law and serves as a Citations Editor for the college's Law Review, he previously authored a case note in Volume 94 Issue 4 entitled Injury-in-Fact of Nothing: Why Federal Courts Cannot Certify Classes with Uninjured Members After LabCorp. He previously served as an Associate Editor of the Intellectual Property. His scholarly interests include constitutional law, administrative law, corporate law, and criminal law.

References

1
M.J.M.A. v. Hermosillo, N. 6:25-cv-02011-MTK, slip op. at 2-3 (D. Or. Feb. 4, 2026) (granting preliminary injunction and finding a “pattern and practice” of warrantless arrests without individualized determinations as required by law). ↩︎
2
Id. (requiring specific, particularized facts and rejecting reliance on non-individualized determinations). ↩︎
3
See ICE Agents Reveal Arrest Quotas and Surveillance App in Rare Court Testimony,The Guardian (2026), https://www.theguardian.com/us-news/2026/mar/13/ice-agent-court-testimony-oregon [https://perma.cc/JY9U-LDU6] (last visited Apr. 6, 2026). ↩︎
4
See Richard H. Fallon Jr., The Rule of Law as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 7-10 (1997) (noting that the “Rule of law is best conceived as comprising multiple strands . . .”). ↩︎
5
Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1037 (2004) (arguing that government may well assert other powers in carrying out the reassurance function and supporting that in modern governance, facts and conditions are generated and utilized by the Executive Branch itself as part of a reassurance function). ↩︎
6
Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001) (stating that the Presidency has come to the forefront and asserted at least a comparative primacy in setting the direction and influencing the outcome of administrative process). ↩︎
7
See id. at 2248-49 (describing White House direction of agency action and agenda-setting within the executive branch). ↩︎
8
See City of Arlington, 569 U.S. 290, 296-97; see also 5 U.S.C. § 706(2)(A); and Mass. v. EPA, 549 U.S. 497, 533-34 (2007) (holding that a federal agency must determine whether sufficient information exists to make a finding). ↩︎
9
Motor Vehicle Mfrs. Assoc. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). ↩︎
10
FBI v. Fazaga, 595 U.S. 344, 354-60 (2022) (affirming that FISA does not displace the state secrets privilege and that courts may not review evidence covered by privilege); see also Martin v. Mott, 25 U.S. 19, 29 (1827) (noting the decision of the President is conclusive as to the existence of an emergency). ↩︎
11
See State Farm, 463 U.S. at 43 (stating that courts are not to substitute their judgment for that of the agency under an arbitrary and capricious standard). ↩︎
12
See Mass. 549 U.S. at 533-34. ↩︎
13
Trump v. Hawaii, 585 U.S. 667, 684 (2018) (holding the president lawfully exercised the broad discretion granted to the office). ↩︎
14
See Oxford Dictionary (online ed.) (defining epistemic as “of or relating to knowledge . . . or degree of validation”), https://www.oed.com/dictionary/epistemic_adj?tab=meaning_and_use#5349096 [https://perma.cc/4YF2-CENY] (last visited Feb. 7, 2026). ↩︎
15
Id. ↩︎
16
David E. Pozen, Deep Secrecy, 62 Stan. L. Rev. 257, 260-63 (2010) (theorizing deep secrecy as a mode of executive power that structures what information enters legal and political accountability mechanisms); see also Gillian B. Metzger, The Constitutional Duty to Supervise, 124 Yale L. J. 1836, 1842-47 (2015) (arguing that constitutional doctrine inadequately accounts for executive administration and requires stronger supervisory oversight). ↩︎
17
See Pozen, supra note 16; see also Metzger, supra note 16 (discussing the constitutional duty to supervise executive administration). ↩︎
18
Motor Vehicle Mfrs. Assoc. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (requiring agencies to examine the relevant data and courts to apply legal standards to that record); see also Erwin Chemerinsky, Getting Beyond Formalism in Constitutional Law: Constitutional Theory Matters, 54 Okla. L. Rev. 1 (2001) (stating that judging was conceived as a mechanical act of applying law to the facts of the particular case). ↩︎
19
State Farm, 463 U.S. at 43 (requiring agencies to examine the relevant data and courts to apply legal standards to that record). ↩︎
20
Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (stating that the President’s authority to protect national security information flows primarily from this constitutional investment of power in the President and depends on centralized control over sensitive information). ↩︎
21
Id. ↩︎
22
Louis Fisher, The Politics of Executive Privilege 19-27 (4th ed. 2004). ↩︎
23
Id. at 20-23. ↩︎
24
Id.; see also Egan, 484 U.S. at 527 (recognizing the authority to control national security information falls on the President as head of the Executive Branch as Commander in Chief). ↩︎
25
Fisher, supra note 22, at 90-101 (documenting repeated presidential refusals to provide Congress with information relating to war powers, intelligence activities, and internal executive deliberations); see also U.S. v. Nixon, 418 U.S. 683, 708 (1974) (recognizing a constitutionally grounded executive privilege over internal communications that limits legislative and judicial access to the information). ↩︎
26
See Heather Elliott, The Functions of Standing, 61 Stan. L. Rev. 459, 482-83 (2009) (explaining Article II standing operates as a gatekeeping device by conditioning access to federal courts on satisfaction of evidentiary predicates for injury). ↩︎
27
Lujan v. Def. of Wildlife, 504 U.S. 555, 562-64 (1992) (describing plaintiff’s challenge to a regulation limiting the geographic scope of the Endangered Species Act and their asserted injury based on plans to observed endangered species abroad). ↩︎
28
Id. at 573-74 (requiring a concrete and particularized injury in fact and rejecting standing premised on generalized interests in lawful government and articulating the three elements of Article III standing and requiring plaintiffs to make factual showings connecting government action to concrete injury). ↩︎
29
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409-14 (2013) (denying Article III standing by rejecting a standing theory premised on a speculative chain of possibilities). ↩︎
30
Id. at 411-16 (explaining that plaintiffs could not manufacture standing where the government neither confirmed nor denied whether surveillance had occurred and rendering alleged injuries speculative). ↩︎
31
Id. at 409-14 (denying Article III standing by rejecting a standing theory premised on a speculative chain of possibilities). ↩︎
32
See Heather Elliott, supra note 26. ↩︎
33
Id. ↩︎
34
See Stephen I. Vladeck, The National Security Canon, 61, Am. U.L Rev. 1295, 1306-15 (2012) (describing how challenges to national security are frequently dismissed on standing, ripeness, or justiciability grounds because plaintiffs lack access to nonpublic information necessary to demonstrate concrete injury). ↩︎
35
See Motor Vehicle Mfrs. Assoc. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (holding that an agency must examine the relevant data and articulate a satisfactory connection between the facts and choice made). ↩︎
36
See Kagan, supra note 6, at 2248-49 (describing White House direction of agency action and agenda-setting within the executive branch). ↩︎
37
See Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 888-89 (2003) (arguing that interpretive disputes are really about institutional questions and that adequate account must attend to institutional capacities and related effects). ↩︎
38
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-21 (1971) (requiring “searching and careful” review under the APA while holding that judicial review is confined to the administration record before the agency). ↩︎
39
Id. at 416. ↩︎
40
State Farm, 463 U.S. at 43 (holding courts must determine whether the agency examined relevant data and articulated a satisfactory explanation for its action). ↩︎
41
Id. ↩︎
42
Id. (reaffirming that courts may not “substitute [their] judgement for that of the agency”). ↩︎
43
Id. ↩︎
44
Id. ↩︎
45
Totten v. U.S. 92 U.S. 105, 107 (1875). ↩︎
46
Id. ↩︎
47
Id.; see also Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1937, 1947 (2007) (explaining that secrecy doctrines can foreclose adversarial testing solely on the invocation of the States secrets privilege). ↩︎
48
U.S. v. Reynolds, 345 U.S. 1, 10 (1953). ↩︎
49
Dep’t of Navy v. Egan, 484 U.S. 518, 527-29 (1988). ↩︎
50
Id. ↩︎
51
See Egan, 484 U.S. at 527 (holding that the protection of classified material must be committed to broad discretion of the executive agency responsible and grounding the authority in the President’s role as Commander in Chief); see also Kagan, supra note 6, at 2250-51 (stating courts should not look behind the exercise of that discretion when a facially legitimate reason is provided). ↩︎
52
Egan, 484 U.S. at 527; see also Trump v. Hawaii, 585 U.S. 667, 683-84 (2018) (stating § 1182(f) exudes deference to the President in every clause); City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 296-97 (2013) (stating historically a background presumption of congressional intent exists and that statutory ambiguities are resolved by the administering executive agency within reasonable bounds); Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (providing courts shall set aside agency found to be arbitrary or capricious); Mass. v. EPA, 549 U.S. 497, 533-34 (2007); and Balt. Gas & Elec. Co. v. Nat. Res. Def., 462 U.S. 87, 103 (1983) (holding that when reviewing scientific determinations, courts must be at their most deferential). ↩︎
53
Id. ↩︎
54
Contrast Wendy E. Wagner, Administrative Law, Filter Failure, and Information Capture, 59 Duke L.J. 1321, 1325-33 (2010) (explaining how regulatory institutions generate, filter, and shape information used in governance rather than merely discovering neutral facts) with Reuel E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399, 417 (2007) (describing how in the early to mid-1900s, agency experts were viewed as neutral specialists able to successfully implement Congress’s more general policy solutions and identify the objectively correct solution[s] to the country’s problems) ↩︎
55
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (stating that presidential power must stem from Congress or the Constitution). ↩︎
56
Id. at 637 (stating that presidential power must stem from constitutional or statutory sources and evaluating executive action against congressional authorization); see also Shalev Roisman, Presidential Factfinding, 72 Vand. L. Rev. 825, 825-26 (2019) (noting that the President can only invoke powers when certain facts exist and emphasizing the importance of how those facts are found). ↩︎
57
See Roisman, supra note 55 (explaining that presidential factfinding determines whether executive power may be invoked and that the standards used to find those facts have enormous consequences). ↩︎
58
Egan, 484 U.S. at 529-30 (holding that predictive national security judgments are committed to executive discretion); see also Roisman, supra note 55, at 829-30 (stating that the President’s power often hinges on finding certain facts). ↩︎
59
Address before a Joint Session of Congress on the State of the Union, 39 Weekly comp. pres. doc. 109 (Jan. 28, 2003) (asserting that Iraq possessed weapons of mass destruction and posed a grave danger to the U.S.); But cf. S. Select Comm. On Intel., Report on the U.S. Intelligence Community’s Prewar Intelligence Assessments on Iraq, 108^th Cong. 14-18 (2004) (finding that key intelligence judgments regarding Iraq’s weapons of mass destruction were inaccurate and overstated). ↩︎
60
U.S. Dep’t of Justice, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational leader of Al-Qa’ida or An Associated Force (2010) (white paper) (explaining that targeting determinations rely on executive assessments of “imminence” and feasibility of capture derived from classified intelligence); see also Christopher M. Faulkner & Jeff Rogg, Ten Years After the Al-Awlaki Killing A Reckoning for the United States’ Drone Wars Awaits, Modern War Institution at West Point (Sep. 27, 2021) (describing the counterintelligence and judicial process presented in association with the killing of a U.S. citizen), https://mwi.westpoint.edu/ten-years-after-the-al-awlaki-killing-a-reckoning-for-the-united-states-drones-wars-awaits/ [https://perma.cc/LR98-9CDG]; But cf. Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 45-52 (D.D.C. 2010) (declining to adjudicate the legality of targeted killing decisions in part because the relevant factual determinations were committed to the political branches and not susceptible to judicial review). ↩︎
61
Dep’t of Homeland Sec. v. Regents of the U.C., 591 U.S. 1, 25-34 (2020) (describing how agency decisionmaking reflects executive priorities and requires consideration of policy justifications and underlying factual assessments). ↩︎
62
Memorandum from Alejandro N. Mayorkas, Sec’y of Homeland Sec., to U.S. Immigr. & Customs Enf’t et al. (Sep. 30, 2021) (establishing enforcement priorities based on executive-defined categories such as threats to national security, public safety, and border security, grounded in agency data and risk assessments); But cf. Tex. v. U.S., 50 F.4th 498, 517-20 (5th Cir. 2022) (questioning the legal sufficiency and application of those executive-defined enforcement priorities and underlying factual assumptions). ↩︎
63
M.J.M.A. v. Hermosillo, N. 6:25-cv-02011-MTK, slip op. at 2-3 (D. Or. Feb. 4, 2026) (granting preliminary injunction and finding a “pattern and practice” of warrantless arrests without individualized determinations as required by law). ↩︎
64
Id. (requiring specific, particularized facts) (rejecting reliance on non-individualized determinations). ↩︎
65
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (structuring executive discretion in relation to congressional authorization and noting when the Presidents acts pursuant to express or implied authorization from Congress, his authority is maximum). ↩︎
66
Id. (articulating three categories of presidential authority based on the degree of congressional authorization). ↩︎
67
Seila Law LLC v. CFBP, 591 U.S. 197, 204 (2020) (stating that the entire “executive Power” belongs to the President alone); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 483-84 (recognizing presidential supervisory authority over executive officers); and Kagan, supra note 6, at 2248-52. ↩︎
68
See Daphna Renan, The President’s Two Bodies, 120 Colum. L. Rev. 1119, 1182 (2020) (describing how presidential practice and historical gloss expand the effective scope of executive authority over time). ↩︎
69
Lujan v. Def. of Wildlife, 504 U.S. 555, 560-61 (1992) (establishing the judicial review is conditioned on satisfaction of Article III standing requirements). ↩︎
70
Id. ↩︎
71
See Gene R. Nichol Jr., Standing for Privilege: The Failure of Injury Analysis, 82 B.U. L. Rev. 301, 339-40 (arguing that standing doctrine can function to bar adjudication when litigants cannot generate the factual record needed for jurisdiction). ↩︎
72
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410-14 (2013) (rejecting standing where alleged surveillance injuries rested on a speculative chain of possibilities). ↩︎
73
Id. at 410-11 (rejecting standing where alleged surveillance injuries rested on a speculative chain of possibilities). ↩︎
74
See Nichol Jr., supra note 70, at 339 (describing standing doctrine as closing the courthouse door when litigants cannot substantiate injury). ↩︎
75
Id. at 305 (explaining that courts justify standing as enforcing Article III limits, even though the doctrine operates institutionally to shape who can obtain adjudication and on what factual footing). ↩︎
76
Motor Vehicle Mfrs. Assoc. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983) (holding that arbitrary-and-capricious review asks whether the executive agency considered the relevant facts and articulated a satisfactory explanation and structuring judicial oversight around the agency’s chosen factual framework). ↩︎
77
Id. ↩︎
78
See State Farm, 463 U.S. at 42-43 (defining “hard look” review as limited to reasoned explanation rather than independent judicial reweighing of agency factual judgements); and Nikoi Oydanich, Chief Justice Roberts’s Hard Look Review, 89 Fordham L. Rev. 1635, 1665 (2020) (noting that Chief Justice Roberts’s “hard look” review restrains the Court’s role in reviewing agency actions). ↩︎
79
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (holding that courts defer where the executive agency provides a reasoned explanation for its chosen approach). ↩︎
80
See State Farm, 463 U.S. at 42-43 (requiring courts to ensure agencies examined relevant data and articulated a rational explanation, not to substitute their own policy or factual baselines). ↩︎
81
U.S. v. Reynolds, 345 U.S. 1, 10-11 (1953) (establishing that courts must exclude evidence when disclosure risks national security even if doing so impedes adjudication). ↩︎
82
Id. ↩︎
83
FBI v. Fazaga, 595 U.S. 344 (2022). ↩︎
84
U.S. v. Reynolds, 345 U.S. at 10-11. ↩︎
85
See Baker v. Carr369 U.S. 186, 217-18 (1962) (identifying non-justiciability where there is a lack of judicially discoverable and manageable standards for resolving it); see also Wagner, supra note 53, at 1431 (observing there are no provisions in administrative law for regulating the flow of information and limiting judicial capacity to penetrate agencies’ epistemic framing of facts). ↩︎
86
See Metzger, supra note 16, at 1900-03 (describing how constitutional mean develops through administrative constitutionalism and reflecting institutional practices that operate across cases rather than in isolated adjudications); see generally Pozen, supra note 16, at 270-78 (analyzing the consequences of deep secrecy for legal accountability and institutional oversight). ↩︎
87
See Fallon Jr., supra note 4. ↩︎
88
See Pozen, supra note 16, at 270-73 (stating deep secrets disable outsiders’ checking abilities and prevents external verification). ↩︎
89
Reynolds, 345 U.S. 1, 9-10 (1953) (recognizing that judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers); see also Pozen, supra note 16, at 322-23 (observing that secrecy can disable oversight by creating conditions in which branches act without external checking and describing an anti-ignorance principle of constitutional government). ↩︎
90
See Nichol Jr., supra note 70, at 322-24 (2002) (arguing that standing doctrine denies review in cases where governmental control over information prevents plaintiffs from demonstrating injury despite the existence of real harms). ↩︎
91
See id. at 339-40 (arguing that standing doctrine can function to bar adjudication when litigants cannot generate the factual record needed for jurisdiction). ↩︎
92
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411 (2013); and FBI v. Fazaga, 595 U.S. 344 (2022). ↩︎
93
See Vladeck, supra note 34. ↩︎
94
See David E. Pozen, Transparency’s Ideological Drift, 128 Yale L. J. 100, 163 n.277 (2018) (arguing that transparency does not necessarily produce accountability). ↩︎
95
See Wagner, supra note 53, at 1321-22 (emphasizing that administrative law does not regulate who controls the flow of information). ↩︎
96
See Pozen, supra note 16, at 322-23 (noting that executive agency deep secrecy disables outsiders checking abilities). ↩︎
97
Motor Vehicle Mfrs. Assoc. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (requiring agencies to account for alternatives and relevant evidentiary considerations in their decision-making); see also Wagner, supra note 53, at 1323-24 (arguing that disclosure of excluded data and methodological alternatives is central to meaningful review). ↩︎
98
See Camp v. Pitts, 411 U.S. 138, 142 (1973) (clarifying courts review existing records rather than engage in independent fact-finding); see also Wagner, supra note 53, at 1431. ↩︎
99
See Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-88 (1951) (requiring courts to evaluate the administrative record as a whole rather than isolating supportive evidence); see also Dep’t of Com. v. N.Y., 588 U.S. 752, 784-86 (recognizing that methodological and evidentiary choices are reviewable components of agency action). ↩︎