The United States government’s national security activities, including the use of force, consume more than half of all federal discretionary spending and are carried out by the world’s largest bureaucracy. Yet existing scholarship treats these activities as conduct to be regulated, rather than as forms of regulatory action.
This Article introduces a new paradigm for depicting what agencies involved in national security do. It posits that, like other agencies, the national security bureaucracy is best understood to be engaging in regulatory activity—by targeting, detaining, interrogating, and prosecuting enemies; patrolling the border; and conducting surveillance and covert actions. Also, like other agencies, this bureaucracy may overregulate—by using force or conducting surveillance more aggressively than necessary to achieve its objectives.
This warfare-as-regulation paradigm offers several advantages over the predominant paradigm. It provides a cohesive explanatory framework for recent trends, including the individuation of targeting decisions, the infusion of legality into war-making, and widespread concern that national security decision-making favors aggressive policies and lacks sufficient transparency, accountability, and deliberation. Viewing warfare as regulation also helps reformers better identify the pathologies in the regulatory process and their true causes.
Using basic insights from public choice theory, and using the practice of targeted killing as a case study, this Article maps the power dynamics and bureaucratic incentives that drive national security regulating. It concludes that these dynamics and incentives systematically encourage overregulation. This Article then explores administrative law principles, institutional reforms, and new opportunities for political influence that may create countervailing anti-regulatory pressures.