Judicial Limits on Exceptional Executive Power: Two Recent U.S. Court Decisions
While public attention has recently focused on events in Venezuela and the ICE killing of Renee Good in Minneapolis, two court decisions issued shortly before Christmas (one by a federal district court and one by the Supreme Court) warrant closer scrutiny. In each case, the judiciary imposed at least temporary limits on the current administration’s assertion of extraordinary executive authority. Although neither arose from a formally declared state of emergency, both reflect an expansive conception of presidential power in which certain actions are treated as categorically insulated from judicial review.
In this respect, the cases illustrate how exceptional power may be exercised without explicit invocation of emergency authorities, not by suspending the law temporarily, but by asserting that entire domains of executive action lie beyond ordinary legal constraint. This mode of governance closely aligns with the most maximalist contours of unitary executive theory and functions as a de facto state of exception embedded within constitutional interpretation itself.
Security Clearances and a State of Exception
In Mark S. Zaid v. The Executive Office of the President, a federal district court held that the President’s March 2025 Executive Memorandum ordering the revocation of security clearances for a list of individuals (including Mr. Zaid) was an improper exercise of executive authority. The memorandum justified the revocations on the ground that continued access to classified information was “no longer in the national interest.” The court issued a temporary restraining order barring federal departments and agencies from enforcing the revocations or denying access to federal facilities on that basis.
Since returning to office in January 2025, the President has ordered the revocation of security clearances for a number of individuals who have personally or professionally offended him, characterizing these actions as necessary for national security. In defending the revocation challenged by Zaid, the administration argued that security-clearance determinations constitute an exclusive Article II function categorically immune from judicial review, relying primarily on the Supreme Court’s 1988 decision in Department of the Navy v. Egan.
The district court rejected that claim. While acknowledging that authority over clearance eligibility resides within the executive branch, the court emphasized that this authority does not permit action free from constitutional constraint. The public record demonstrated conclusively that Zaid’s clearance was revoked not on the basis of any individualized assessment of risk, but as an act of retribution tied to his representation of clients disfavored by the President. Zaid therefore raised viable constitutional claims concerning both the methods employed and the complete absence of procedural safeguards surrounding the revocation.
Egan rests on the premise that security-clearance decisions involve predictive judgments by trained security professionals assessing future risk on an individualized basis. Because of the exceptional importance of national security, courts generally refrain from second-guessing the substantive merits of those judgments. Crucially, however, Egan does not authorize the executive to dispense with process altogether, nor does it permit clearance authority to be used as a punitive or retaliatory instrument.
Here, not only was there no meaningful review, but the Director of National Intelligence publicly stated during a televised interview that she found it “fun” to revoke Zaid’s clearance. As the court observed, government officials may not wield state power to punish or suppress disfavored expression. When necessity becomes self-validating and discretion untethered from process, executive judgment ceases to be bounded authority and instead takes on the character of exceptional power. The court therefore enjoined enforcement of the clearance revocation ordered by the March 21 Executive Memorandum.
Mark Zaid is a well-known attorney whose career includes extensive civil litigation against the Intelligence Community, as well as representation of whistleblowers alleging governmental wrongdoing. Federal agencies that grant security clearances operate under established procedures governing both approval and revocation. The decision to revoke Zaid’s clearance by presidential fiat, based not on conduct but on the identity of his clients, represents a dangerous assertion of exceptional authority.
If upheld on appeal, this reasoning would establish a precedent under which the executive could effectively determine which legal advocates may participate in proceedings involving classified information, not through individualized risk assessments but through broad assertions of acting in the “national interest.” The implications for the right to counsel and for the rule of law would be profound. Similar issues are now arising in cases involving the revocation of clearances for attorneys associated with law firms that have refused to comply with the administration’s demands. Although lower courts have temporarily intervened, the ultimate question, whether clearance revocation may be wielded as a tool of political coercion, will likely be resolved by the Supreme Court.
Federalized National Guard Deployments and a State of Exception
The second case, Trump v. Illinois, concerned the President’s effort to federalize National Guard units and deploy them to the Chicago area under the authority of 10 U.S.C. § 12406. The President has repeatedly expressed a desire to deploy military forces to urban areas governed by Democratic mayors. Yet the Posse Comitatus Act generally prohibits the use of federal military forces for domestic law enforcement.
When National Guard units operate under the authority of a state governor, they may perform law-enforcement functions as necessary. Once federalized, however, those units are subject to Posse Comitatus restrictions unless Congress has expressly authorized an exception. The Insurrection Act provides such authority, but the administration declined to invoke it, instead relying on Section 12406 as a means of bypassing both statutory thresholds and political accountability.
As in the security-clearance dispute, the administration’s position rested not on the existence of a formally recognized emergency, but on the claim that the President alone may determine when statutory predicates for extraordinary action are satisfied. The Supreme Court upheld the lower court’s temporary restraining order, concluding that the conditions necessary to federalize the National Guard under Section 12406 were not present.
The Court examined the statute’s reference to the President’s inability to execute the laws of the United States “with regular forces” and concluded that, as originally drafted, “regular forces” referred to the U.S. military. Because Posse Comitatus prohibits the military from executing domestic law absent independent authorization, and because the government failed to identify any such authorization, the Court allowed the injunction to stand. Following this defeat, the President announced the withdrawal of federalized National Guard units from Chicago, Los Angeles, and Portland.
National Guard troops remain deployed in Washington, D.C., as well as in New Orleans and Memphis. Different legal regimes govern those deployments, reflecting the unique status of the District of Columbia and actions taken by state governors pursuant to their own authority.
Historically, the deployment of federal forces for domestic law enforcement has been treated as an extraordinary measure. The Insurrection Act has been invoked approximately thirty times in U.S. history, most recently during the 1992 Los Angeles unrest. A longstanding Department of Justice position, articulated in a 1964 memorandum by Deputy Attorney General Nicholas Katzenbach, holds that the Act may be invoked only when violence is sanctioned by state authorities or when insurgents have effectively displaced lawful governance.
The administration’s reliance on Section 12406 illustrates how exceptional authority may be asserted indirectly, by invoking provisions that appear neutral on their face but are deployed to circumvent explicit legal constraints. The Supreme Court’s decision temporarily halted this effort, limiting the use of federalized National Guard troops in a domestic law-enforcement role absent clear statutory authorization.
Conclusion
Read together, these decisions demonstrate how claims of necessity grounded in an expansive conception of executive authority can generate a standing state of exception, one that operates without formal emergency declarations and places entire categories of executive action beyond ordinary review. While the courts imposed temporary restraints in both cases, they did not resolve the broader constitutional question of whether such exceptional authority is becoming normalized within the legal order. The rulings highlight not the disappearance of exceptional power, but its continued assertion, constrained episodically, yet structurally unresolved.
For readers interested in the theoretical framework underlying these assertions of executive authority, ISSE has published a short companion explainer on unitary executive theory and its relation to state of exception.
Photo by Fine Photographics on Unsplash.
