A Response to Paul Dean

I share Paul’s hope that my article will prompt further consideration of the use of IEEPA sanctions to address the problem of proliferation.  The article aims to demonstrate that the way E.O. 13,382 has been used so far is unlikely to prompt any successful legal challenge, but that does not mean the issue should not give us all pause.  Since the first use of IEEPA by President Carter, succeeding administrations have gradually expanded its use.  Yet not one of the institutions empowered to constrain the executive’s powers has shown the inclination to do so.
The U.S. Congress, as author of IEEPA, is best equipped to put the brakes on this expansion of presidential power.  Congress could pass a joint resolution to terminate the fourteen-year-old national “emergency” declared by the President related to the proliferation of WMD, perhaps on the basis that such an ongoing state of affairs cannot properly be classified as a temporary emergency.  Congress has shown neither the inclination to do so, nor the possibility of having the veto-proof supermajority necessary to make it happen against the wishes of the President.  Congress could also amend IEEPA to give itself more control over the exercise of presidential discretion in imposing sanctions.  But no such bill has been proposed.  Instead, Congress appears to be one of the biggest fans of the executive use of IEEPA to declare emergencies and impose sanctions and seems to wish it were used even more often.
As discussed in the article, U.S. courts also provide no meaningful check on the use of IEEPA-authorized sanctions programs like E.O. 13,382.  Under every possible legal theory for challenge, judges find an easy out for judicial deference to the executive.  For example, courts have concluded that those who support terrorism receive all the process that is due when their assets are frozen without prior notice or an opportunity to be heard because the government interest at stake is too great and prior notice would allow the funds to be spirited away to support terrorism.  The interest in preventing proliferation—like stopping terrorism—is simply too compelling for courts to question.  European Courts have likewise deferred to sanctioning authorities, due to the primacy of international legal obligations (like Security Council actions taken under Chapter VII) over domestic law within the E.U.
Thus, the law as it currently stands allows the executive to impose economic sanctions on foreign persons deemed to be supporting proliferation without prior notice given the grave threat to national security posed by proliferation.  The law, however, could be changed.  Neither President Obama nor the current Congress nor the courts shows any indication of changing the law.   Excessive use or abuse of this broad grant of authority in the future could certainly shift the tides.