Greene v. McElroy
360 U.S. 474 (1959)
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Rule of Law:
In the absence of explicit authorization from either the President or Congress, a government agency cannot establish an industrial security clearance program that denies individuals the procedural safeguards of confronting their accusers and cross-examining adverse witnesses, especially when such a denial results in the loss of employment and the inability to pursue a chosen profession.
Facts:
- William Greene was an aeronautical engineer who served as Vice President and General Manager of Engineering and Research Corporation (ERCO), a private company that produced goods for the armed services.
- Greene's position required him to have access to classified information, and he had previously been granted security clearances on multiple occasions.
- In 1951, a government security board tentatively decided to revoke Greene's clearance based on alleged associations with communists and Russian Embassy officials between 1943 and 1947, which Greene attributed to his now ex-wife.
- Initially, in 1952, the Industrial Employment Review Board (IERB) held a hearing and restored Greene's clearance, finding him to be a loyal and discreet citizen.
- In April 1953, the Secretary of the Navy, without a new hearing, unilaterally concluded that Greene's access to classified information was inconsistent with national security.
- The Secretary requested ERCO to bar Greene from any part of its plants where classified work was being done, which directly led to ERCO discharging Greene from his job.
- A subsequent hearing in 1954 before a new board relied on reports from confidential informants whom Greene could not confront or cross-examine.
- Following his discharge, Greene was unable to secure employment in the aeronautics field and was forced to take a much lower-paying job as an architectural draftsman.
Procedural Posture:
- Greene filed a complaint in the U.S. District Court for the District of Columbia, seeking a declaration that the revocation of his clearance was unlawful and void.
- After exhausting his administrative appeals, both Greene and the government cross-filed for summary judgment.
- The District Court granted the government's motion for summary judgment.
- Greene, as appellant, appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
- The Court of Appeals affirmed the District Court's decision, finding the controversy non-justiciable.
- The U.S. Supreme Court granted certiorari to review the judgment of the Court of Appeals.
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Issue:
Does the Department of Defense have the authority, without explicit authorization from the President or Congress, to revoke an employee's security clearance for a private government contractor through a program that denies the employee the rights of confrontation and cross-examination?
Opinions:
Majority - Chief Justice Warren
No. In the absence of explicit authorization from either the President or Congress, the Department of Defense is not empowered to create a security program that deprives an individual of their employment in a proceeding that denies the traditional safeguards of confrontation and cross-examination. The Court deliberately avoids the constitutional due process question, instead resolving the case on narrower grounds of agency authority. The Executive Orders and statutes cited by the government are too general and do not explicitly grant the power to bypass fundamental procedural rights. Mere acquiescence by the President or appropriations by Congress do not constitute the explicit delegation required when an agency's actions seriously injure an individual and raise significant constitutional concerns. Such fundamental decisions must be made deliberately by the political branches, not assumed by default by administrative agencies.
Concurring - Justice Harlan
No. The judgment is correct because the Court should not decide the difficult constitutional question of whether the security clearance procedures are permissible until the President or Congress has deliberately considered and expressly authorized them. This decision adheres to the Court's wise tradition of not reaching constitutional issues unnecessarily. The central issue is not whether a person has a right to access classified material, but whether the specific procedures used to deny that access were constitutionally permissible, a question that is premature without explicit authorization from the political branches.
Dissenting - Justice Clark
Yes. The Department of Defense had sufficient authority to implement its security program. There is no constitutional right to have access to government military secrets, and the loss of private employment is an indirect consequence of the government's necessary power to protect national security. The President has inherent authority, and a long history of Executive Orders, reports to the President, and congressional appropriations demonstrates sufficient authorization and ratification of the program. The majority's demand for more explicit authorization is overly formalistic and dangerously hinders the executive's ability to protect the nation during a period of national emergency.
Analysis:
This case is a landmark decision in administrative law, based on the principle of constitutional avoidance and the non-delegation doctrine. By requiring explicit authorization for agency procedures that impinge on fundamental rights, the Court forced the political branches to take direct responsibility for controversial national security programs. The ruling established a clear statement rule: courts will not assume that Congress or the President has authorized a departure from traditional due process norms without a clear, specific mandate. In direct response to this decision, President Eisenhower issued Executive Order 10865 in 1960, which explicitly authorized the industrial security program and its procedures, thereby setting the stage for future legal challenges to focus directly on the constitutional due process issues the Court avoided here.
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