Courts generally afford the executive branch wide deference in matters of national security in recognition that one of the executive branch’s primary responsibilities is to oversee our military and national defense. However, courts have also cautioned that a hands-off approach may create an incentive for the executive branch to use national security grounds to insulate its decisions from meaningful judicial review.

The second Trump administration has cited national security as the principal justification for several actions, including actions that will have environmental implications. In asserting this justification, the administration has offered limited explanation for why national security is implicated or how the administration’s actions will address such a risk.

There is limited case law addressing the intersection of judicial review under the Administrative Procedure Act’s arbitrary and capricious standard and judicial forbearance on national security issues. Nonetheless, we are seeing courts reinforce that they can probe official explanations for agency decisions, even when they rest on national security rationales. These decisions also highlight the legal vulnerabilities in policies that arise after an administration clearly articulates its policy goal without an apparent connection to national security, and later relies upon a “national security” rationale for the agency action implementing the resulting policy.

This paper explores the tension between judicial review and courts’ longstanding deference to agencies’ national security justifications, identifies the administration’s unusual and expansive reliance on national security rationales, and describes how courts are responding to those rationales.