International Emergency Economic Powers Act

Summary

The International Emergency Economic Powers Act (IEEPA), Title II of Pub. L. 95–223, 91 Stat. 1626, enacted October 28, 1977, is a United States federal law authorizing the president to regulate international commerce after declaring a national emergency in response to any unusual and extraordinary threat to the United States which has its source in whole or substantial part outside the United States.[1] The act was signed by President Jimmy Carter on December 28, 1977.[2]

International Emergency Economic Powers Act
Great Seal of the United States
Long titleAn Act with respect to the powers of the President in time of war or national emergency.
Acronyms (colloquial)IEEPA
Enacted bythe 95th United States Congress
EffectiveDecember 28, 1977
Citations
Public law95-223
Statutes at Large91 Stat. 1625
Codification
Titles amended50 U.S.C.: War and National Defense
U.S.C. sections created50 U.S.C. ch. 35 § 1701 et seq.
Legislative history
  • Introduced in the House as H.R. 7738 by Jonathan B. Bingham (D-NY) on June 13, 1977
  • Committee consideration by House Foreign Affairs, Senate Banking, Housing, and Urban Affairs
  • Passed the House on July 12, 1977 (passed)
  • Passed the Senate on October 11, 1977 (passed) with amendment
  • House agreed to Senate amendment on November 30, 1977 (agreed) with further amendment
  • Senate agreed to House amendment on December 7, 1977 (agreed)
  • Signed into law by President Jimmy Carter on December 28, 1977
United States Supreme Court cases
Dames & Moore v. Regan

ProvisionsEdit

In the United States Code, the IEEPA is Title 50, §§1701–1707.[3] The IEEPA authorizes the president to declare the existence of an "unusual and extraordinary threat... to the national security, foreign policy, or economy of the United States" that originates "in whole or substantial part outside the United States."[4] It further authorizes the president, after such a declaration, to block transactions and freeze assets to deal with the threat.[5] In the event of an actual attack on the United States, the president can also confiscate property connected with a country, group, or person that aided in the attack.[6]

The IEEPA falls under the provisions of the National Emergencies Act (NEA), which means that an emergency declared under the act must be renewed annually to remain in effect.

The authority given to the President under the IEEPA does not grant them the ability to regulate or prohibit, directly or indirectly, any forms of personal communication (including means such as mail, telegraph or telephone), which “does not involve a transfer of anything of value;” imports or exports of information or any informational materials, “regardless of format or medium of transmission” (including but not limited to publications, films, posters, phonograph records, photographs, microforms, tapes, compact discs, CD-ROMs, artworks and news wire feeds, and interpreted to include modern mediums such as DVDs, digital media content and social media); certain donations “intended to be used to relieve human suffering” (such as food, clothing, and medicine); and any travel-related transactions (including importation of personal baggage, “maintenance within any country” including payment of living expenses and acquisition of goods or services intended for personal use, and arrangement or facilitation of such travel including non-scheduled air, sea, or land voyages).[7]

HistoryEdit

Curtailment of emergency executive powersEdit

Congress enacted the IEEPA in 1977 to clarify and restrict presidential power during times of declared national emergency under the Trading with the Enemy Act of 1917 ("TWEA"). Under TWEA, starting with Franklin D. Roosevelt in 1933, presidents had the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.[8] The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself. A 1973 Senate investigation found (in Senate Report 93-549) that four declared emergencies remained in effect: the 1933 banking crisis with respect to the hoarding of gold,[9] a 1950 emergency with respect to the Korean War,[10] a 1970 emergency regarding the postal workers strike, and a 1971 emergency in response to the government's deteriorating economic and fiscal conditions.[11] Congress terminated these emergencies with the National Emergencies Act, and then passed the IEEPA to restore the emergency power in a limited, overseeable form.

Unlike TWEA, IEEPA was drafted to permit presidential emergency declarations only in response to threats originating outside the United States.[12] Beginning with Jimmy Carter in response to the Iran Hostage Crisis, presidents have invoked IEEPA to safeguard U.S. national security interests by freezing or "blocking" assets of belligerent foreign governments,[13] or certain foreign nationals abroad.[14]

In 1988, Congress passed amendments to the TWEA and IEEPA, authored by Rep. Howard Berman (DCA), aimed at protecting the rights of American citizens to receive information, regardless of the country of origin of such materials used, by exempting varied methods of communication from regulation. The revisions to both acts, known collectively as the “Berman Amendment,” restrict the President’s authority to regulate or prohibit the importation or exportation of various forms of print, audio and video materials, artwork and other images, and other informational materials protected under the First Amendment.[15] The Office of Foreign Assets Control (OFAC) under the U.S. Department of Treasury, however, interpreted this exemption narrowly to claim it held the right to prohibit any transactions associated with “informational materials not fully created and in existence at the date of the transaction.”[16] In response, the Berman-sponsored Free Trade in Ideas Act—passed by Congress in 1994—revised the original amendment's First Amendment exemptions to include newer and forthcoming mediums (including intangible items such as television broadcasts and methods of personal communication), further clarifying that the President’s emergency sanction powers under the IEEPA and TWEA cannot be used with regard to any information or informational materials, regardless of their format or medium, or whether they are intended for personal or commercial use. The updated language also clarified that the non-exhaustive list of exempted materials was illustrative in nature, inferring that unlisted materials not yet invented or in wide use at the time of its passage would be prohibited from being subject to sanctions or other regulation under both acts.[17]

Since 9/11Edit

Following the September 11, 2001 terrorist attacks, President George W. Bush issued Executive Order 13224 under the IEEPA to block the assets of terrorist organizations.[18] The President delegated blocking authority to federal agencies led by the U.S. Treasury. In October 2001, Congress passed the USA PATRIOT Act which, in part, enhanced IEEPA asset blocking provisions under §1702(a)(1)(B) to permit the blocking of assets during the "pendency of an investigation." This statutory change gave the Treasury's Office of Foreign Assets Control the power to block assets without the need to provide evidence of the blocking subject's wrongdoing nor to permit the blocking subject a chance to effectively respond to the allegations in court.[19] Executing these blocking actions led to a series of legal cases challenging federal authority to indefinitely prevent charitable organizations from accessing their assets held in the United States.[20]

President Donald Trump used the IEEPA extensively, sanctioning more than 3,700 entities and invoking 11 national emergency declarations (out of the 13 that he declared overall) relying primarily or exclusively on IEEPA authority during his 2017–21 term; Trump also used or threatened use of its powers in unconventional and unprecedented manners (including executive actions utilizing powers under the act that prompted legal challenges).[16]

On May 30, 2019, the White House announced that Trump would use IEEPA powers to introduce tariffs on Mexican exports in response to the national security threat of illegal immigration from Mexico into the United States.[21] As part of an ongoing trade war with China, on August 24, 2019, Trump tweeted that he “hereby ordered” U.S. companies to start looking at alternatives to China on the basis of claimed powers under IEEPA.[22][23] Trump, however, did not formally declare an emergency as required by IEEPA.

In September 2020, the Trump administration sanctioned and imposed visa restrictions on two International Criminal Court (ICC) officials, prosecutor Fatou Bensouda and Jurisdiction Complementarity and Cooperation Division Director Phakiso Mochochoko, over the court's investigation into allegations of war crimes committed by the U.S. and Israel in Afghanistan and the Palestinian territories, respectively. Critics considered the order an effort to intimidate ICC civil servants from proceeding with its investigation and accused the administration of targeting the two prosecutors, both of African origin, based on their race. The U.S. District Court for the Southern District of New York granted a preliminary injunction blocking the sanctions in January 2021, through a challenge to the order brought by four dual-national American law professors and the Open Society Justice Initiative. (The Biden administration lifted the ICC sanctions in April 2021.)[24][25][26]

Also in September 2020, Trump used the IEEPA to order the removal of social media platforms TikTok and WeChat from U.S. app stores as well as prohibit domestic business transactions involving their respective China-based parent companies ByteDance and Tencent; the restrictions would have become applicable to TikTok unless it was sold to an American company within 45 days of the executive order’s issuance.[27][28] Observers (including Trump administration critics and many TikTok users) raised First Amendment concerns with the executive order and suggested that, while national security concerns were cited to justify them, the sanctions were prompted by the administration’s hostile relations toward China in general and retaliation against TikTok in particular for certain anti-Trump content hosted by the app and, as also suggested by ByteDance in court documents pertaining to its lawsuit to overturn the order, a ticket reservation prank waged by some users of the video platform that depressed attendance for a campaign rally he held in Tulsa, Oklahoma that June.[29][30] The executive order was blocked by federal courts in two separate cases on grounds that the sanctions likely violated IEEPA’s informational materials exemption (under the Berman Amendment) and First Amendment protections applying to users of the apps.[31][32][33]

LitigationEdit

Notable casesEdit

ViolationsEdit

List of emergenciesEdit

CurrentEdit

As of 2021, the following IEEPA emergencies are active.[39]

Starting year Country/region Executive order Basis of emergency Scope
1979 Iran 12170 Iran hostage crisis Property of the government of Iran and its instrumentalities
1994 Worldwide 12938 Proliferation of weapons of mass destruction Property of persons that engage in or support proliferation
1995 Iran 12957 Actions and policies of the government Various forms of commerce involving Iran
1995 Middle East 12947 Terrorist violence to disrupt the peace process Property of Specially Designated Terrorists committing or supporting such violence
1995 Colombia 12978 Foreign narcotics traffic Property of traffickers and their material supporters
1997 Sudan 13067 Actions and policies of the government US-Sudan commerce generally
2001 North Macedonia 13219 Extremist violence and actions that obstruct the Dayton Agreement or UNSC Resolution 1244 Property of persons engaged in or providing support for such activities
2001 Worldwide 13222 Expiration of the Export Administration Act Continuation of authority for all regulations previously authorized under the Act
2001 Worldwide 13224 Threat of terrorist attacks on the US and its nationals Property of Specially Designated Global Terrorists that commit, threaten to commit or support terrorism, including al-Qaeda
2003 Zimbabwe 13288 Actions and policies of members of the government Property of 77 government officials
2003 Iraq 13303 Obstacles to reconstruction Property of officials and associates of the Saddam Hussein government, and of persons undermining stabilization efforts with violence.
2004 Syria 13338 Various aggressive actions of the government Property of persons involved in those actions
2006 Belarus 13405 Actions and policies of members of the government Property of government officials and other persons involved in human rights abuses
2006 Democratic Republic of the Congo 13413 Violence and atrocities that threaten regional stability Property of persons contributing to said violence
2007 Lebanon 13441 Actions to undermine the government Various forms of commerce involving persons engaged in such actions
2008 North Korea 13466 Nuclear proliferation Various forms of commerce involving North Korea and its nationals
2010 Somalia 13536 Deterioration of the security situation Property of persons that threaten the peace, security, or stability of Somalia
2011 Libya 13566 Extreme measures taken during the Libyan Civil War Property of officials and associates of the Muammar Gaddafi government
2011 Worldwide 13581 Activities of transnational criminal organizations Property of persons involved in such organizations
2012 Yemen 13611 Actions and policies that threaten the peace, security, or stability of Yemen Property of persons engaged in such actions.
2014 Ukraine and Russia 13660 Actions and policies of persons engaged in the Ukraine crisis Property of such persons.
2014 Central African Republic 13667 Central African Republic conflict (2012–present) Property of persons contributing to the conflict.
2014 South Sudan 13664 Activities that threaten regional peace, security, or stability Property of persons engaged in such activities.
2015 Venezuela 13692 Human rights violations Property of persons responsible for such violations.
2015 Worldwide 13694 Significant malicious cyber-enabled activities Property of persons responsible for or complicit in such activities.
2015 Burundi 13712 2015 Burundian unrest Property of persons engaged in destabilizing activities.
2017 Worldwide 13818 Serious human rights abuse and corruption Property of designated persons engaged in such activities
2018 Worldwide 13848 Risk of foreign interference in US elections Property of foreign persons determined to have participated in such interference
2018 Nicaragua 13851 Human rights abuses, destabilization and corruption under the Daniel Ortega government Property of persons engaged in such activities
2019 Worldwide 13873 Vulnerabilities in information and communications technology and services Technology and services connected with a foreign adversary that pose a risk to the United States
2019 Turkey 13894 Military operations in Syria Property of Turkish government officials, institutions and supporting entities
2020 China 13936 Actions that undermine the autonomy and institutions of Hong Kong Property of foreign persons connected with such actions
2020 China 13959 Use of United States financial capital for military development and modernization Transactions in securities of Chinese military companies
2021 Myanmar 14014 2021 Myanmar coup d'état Property of foreign persons connected with the armed forces of Myanmar or repressive actions and polices
2021 Russia 14024 Harmful foreign activities of the government, including activities that undermine the security and stability of the US and its allies Property of persons connected with such activities
2021 Ethiopia 14046 Humanitarian crisis connected with the Tigray War Property of and transactions with foreign persons contributing to the crisis
2021 Worldwide 14059 Global illicit trade in opioids and other drugs Property of foreign persons engaged in the trade
2022 Afghanistan 14064 Humanitarian crisis and claims involving victims of terrorist attacks Property of Da Afghanistan Bank

PastEdit

See alsoEdit

ReferencesEdit

  1. ^ Casey, Christopher A.; et al. (March 20, 2019). The International Emergency Economic Powers Act: Origins, Evolution, and Use (PDF). Washington, DC: Congressional Research Service. Retrieved 29 March 2019.
  2. ^ Peters, Gerhard; Woolley, John T. "Jimmy Carter: "Presidential War Powers Bill Statement on Signing H.R. 7738 Into Law.," December 28, 1977". The American Presidency Project. University of California – Santa Barbara.
  3. ^ 50 U.S. Code Chapter 35 – International Emergency Economic Powers| LII / Legal Information Institute. Law.cornell.edu. Retrieved on 2014-06-16.
  4. ^ 50 U.S.C. §1701(a)
  5. ^ 50 U.S.C. §1702(a)(1)(B)
  6. ^ 50 U.S.C. §1702(a)(1)(C)
  7. ^ 50 U.S. Code § 1702 - Presidential authorities – (b) Exceptions to grant of authority
  8. ^ H. Rep. No. 95-459, at 7 (1977) "[the TWEA] has become essentially an unlimited grant of authority for the President to exercise, at his discretion, broad powers in both the domestic and international economic arena, without congressional review. These powers may be exercised so long as there is an unterminated declaration of national emergency on the books, whether or not the situation with respect to which the emergency was declared bears any relationship to the situation with respect to which the President is using the authorities"
  9. ^ Executive Order 6102
  10. ^ Executive Proclamation 2914, http://www.presidency.ucsb.edu/ws/index.php?pid=13684
  11. ^ S. Rep. No. 93-549, at 2 (1973), http://www.ncrepublic.org/images/lib/SenateReport93_549.pdf
  12. ^ 50 U.S.C. §1701(a)
  13. ^ Executive Order 12170, 44 C.F.R. 65,729.
  14. ^ Executive Order 12978, 60 C.F.R. 54,579 (1995) (blocking the assets of certain Colombian narcotics traffickers).
  15. ^ § 2502(a) of the Omnibus Trade and Competitiveness Act, Pub. L. No. 100-418, 102 Stat. 1107 (1988)
  16. ^ a b Andrew Boyle (June 10, 2021). "Checking the President's Sanctions Powers: A Proposal to Reform the International Emergency Economic Powers Act". Brennan Center for Justice at New York University School of Law: 14–15, 18. {{cite journal}}: Cite journal requires |journal= (help)
  17. ^ § 525 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236, 108 Stat. 382 (1994)
  18. ^ Executive Order 13224, Sec. 1(a), http://www.gpo.gov/fdsys/pkg/FR-2001-09-25/pdf/01-24205.pdf
  19. ^ KindHearts v. Geithner, 647 F. Supp. 2d 857, 866, ND Ohio 2009, https://scholar.google.com/scholar_case?case=10931539635102900344&hl=en&as_sdt=2,14&as_vis=1
  20. ^ See e.g., id.
  21. ^ "Trump to hit Mexico with tariffs to halt migrants". BBC News. 2019-05-31. Retrieved 2020-04-10.
  22. ^ Baker, Peter; Bradsher, Keith (2019-08-24). "Trump Asserts He Can Force U.S. Companies to Leave China". The New York Times. ISSN 0362-4331. Retrieved 2020-04-10.
  23. ^ Saha, Sagatom; Feng, Ashley (April 1, 2020). "Global Supply Chains, Economic Decoupling, and U.S.-China Relations, Part 1: The View from the United States". Jamestown Foundation. Retrieved 2020-04-10.
  24. ^ Jennifer Hansler (April 2, 2021). "Trump authorizes sanctions against International Criminal Court officials". CNN. Retrieved December 31, 2022.
  25. ^ "20 Civ. 8121 (KPF) - Opinion and Order" (PDF). U.S. District Court for the Southern District of New York. January 4, 2021. Retrieved January 1, 2023.
  26. ^ "US lifts Trump-era sanctions against ICC prosecutor". BBC News. June 14, 2020. Retrieved December 31, 2022.
  27. ^ Carvajal, Nikki. "Trump issues executive order banning TikTok from operating in 45 days if it's not sold by Chinese parent company". CNN. Archived from the original on 10 August 2020. Retrieved 7 August 2020.
  28. ^ Arbel, Tali (6 August 2020). "Trump bans dealings with Chinese owners of TikTok, WeChat". Associated Press. Archived from the original on 7 August 2020. Retrieved 6 August 2020.
  29. ^ "TIKTOK INC. and BYTEDANCE LTD. v. DONALD J. TRUMP, WILBUR L. ROSS, JR.,and U.S. DEPARTMENT OF COMMERCE". U.S. District Court for the Central District of California Western Division. 24 August 2020. Retrieved 14 September 2020 – via Scribd.
  30. ^ Brown, Abram (1 August 2020). "Is This The Real Reason Why Trump Wants To Ban TikTok?". Forbes. Archived from the original on 3 August 2020. Retrieved 3 August 2020.
  31. ^ "U.S. Judge Halts Trump's TikTok Ban, Hours Before It Was Set To Start". NPR.org. Retrieved 2020-09-28.
  32. ^ TikTok v. Trump, No. 1:20-cv-02658-CJN (Opinion) (D.D.C. Sep. 27, 2020).
  33. ^ Shepardson, David (September 20, 2020). "U.S. judge blocks Commerce Department order to remove WeChat from app stores". Reuters. Retrieved September 20, 2020.
  34. ^ KindHearts v. Geithner, supra
  35. ^ USDOJ: Office of the Pardon Attorney: Clemency Recipients. Justice.gov. Retrieved on 2014-06-16.
  36. ^ Williams, Timothy; Rashbaum, William K. (2006-08-25). "New York Man Charged With Enabling Hezbollah Television Broadcasts". The New York Times. ISSN 0362-4331. Retrieved 2020-04-10.
  37. ^ "Credit Suisse Agrees to Forfeit $536 Million in Connection with Violations of the International Emergency Economic Powers Act and New York State Law". www.justice.gov. 2009-12-16. Retrieved 2020-04-10.
  38. ^ "UAE Company Admits to North Korean Sanctions Violations and Defrauding the U.S. Government, Agrees to Pay $665,000". US Department of Justice. Retrieved 16 July 2020.
  39. ^ U.S. Treasury, Office of Foreign Asset Control, Sanctions Programs and Country Information http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx

Further readingEdit

  • Bowman, Mary Margaret Coughlin (1978). "Presidential Emergency Powers Related to International Economic Transactions: Congressional Recognition of Customary Authority". Vanderbilt Journal of Transnational Law. 11 (3): 515–534.
  • Marks, Lee R.; Grabow, John C. (1982). "President's Foreign Economic Powers After Dames & Moore v. Regan: Legislation by Acquiescence". Cornell Law Review. 68 (1): 68–103.
  • Meezan, David M. (1996). "Forgotten Rights: Takings Claims and the International Emergency Economic Powers Act". Vermont Law Review. 21 (2): 591–632.

External linksEdit

  • International Emergency Economic Powers Act (PDF/details) as amended in the GPO Statute Compilations collection