Does the President really have the absolute right to declassify anything he wants to?
<p>The claim has been made by Donald Trump and many others that the sitting President has the absolute right to declassify any documents he wishes. Leaving aside the issue of what procedure he would have to use or what evidence there would have to be to accept that a particular document was in fact declassified, I'm curious if it's really settled law that he has this power.</p>
<p>I can think of at least two cases where it would seem that he wouldn't have that power:</p>
<ol>
<li><p>Congress has declared some information classified, for example information related to nuclear weapons. Is it settled law that Congress has no idependent power to declare something classified such that the President cannot revoke that status? As a co-equal branch that also has national security responsibilities of all kinds, it would seem quite odd to say that Congress needs the President to classify things for it or that the President can revoke a classification that originates with Congress.</p>
</li>
<li><p>The Constitution declares treaties ratified by Congress to have the power of Federal law, second only to the Constitution. Many classified documents are classified by the United States because their foreign sources declared them classified and our information sharing treaties require us to respect those designations. Is there really any reason to think the President can unilaterally revoke a classification designation imposed by a foreign power and that United States is obligated to honor by the operation of a treaty that the Constitution makes part of Federal law?</p>
</li>
</ol>

<p>Congress has passed some laws that enable POTUS (via is branch) to restrict access to certain information. For example <a href="https://www.law.cornell.edu/uscode/text/50/3126" rel="nofollow noreferrer">50 USC 3126</a>, defines classified information to be</p>
<blockquote>
<p>information or material designated and clearly marked or clearly
represented, pursuant to the provisions of a statute or Executive
order (or a regulation or order issued pursuant to a statute or
Executive order), as requiring a specific degree of protection against
unauthorized disclosure for reasons of national security.</p>
</blockquote>
<p>Or, <a href="https://www.law.cornell.edu/uscode/text/50/3164" rel="nofollow noreferrer">50 USC 3164</a> defines it as</p>
<blockquote>
<p>means any information that has been determined pursuant to Executive
Order No. 12356 of April 2, 1982, or successor orders, or the Atomic
Energy Act of 1954 [42 U.S.C. 2011 et seq.], to require protection
against unauthorized disclosure and that is so designated</p>
</blockquote>
<p>Under existing law, material is classified with a certain statutory authorization (in these instances under Ch. 44 of Title 50, &quot;National Security&quot;), and Congress has given POTUS the sole power to add and subtract documents from the list of &quot;classified&quot; materials. See especially <a href="https://www.law.cornell.edu/uscode/text/50/chapter-44/subchapter-VI" rel="nofollow noreferrer">Subchapter VI</a>.</p>
<p>Of course, Congress cannot implement these laws themselves, that is the prerogative of the Executive branch (perhaps that is the feature of separation of powers that causes problems for understanding &quot;classification&quot;). In theory, Congress could pass a new law that imposes a special &quot;classification&quot; on a certain kind of document and furthermore limits the president's discretion to impose or remove said classification, they just have not done so yet.</p>
<p>The real limit on presidential declassification power is the Administrative Procedure Act. POTUS cannot, himself, actually do much except as commander-in-chief, besides order other people to do things. A previous president <a href="https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information" rel="nofollow noreferrer">issued an order</a> that describes what should be done by departments, w.r.t. classified material, but each department then has to devise &quot;rules&quot; which, depending on the rule, have to be put out for public comment. As long as there exists rules (in the Federal Register) that require something more than presidential say-so for classification or declassification, then POTUS cannot unilaterally (de)classify, he also has to follow the rules. Which he can order changed, but there is a procedure that has to be followed.</p>

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