Sanctions And The Constitution: Who Holds The Power?

In the United States, the President has the authority to impose sanctions, with the most common legislative authority being the International Emergency Economic Powers Act (IEEPA). This act gives the President broad powers to impose economic sanctions in response to national emergencies or threats to national security, foreign policy, or the economy. Additionally, the Trading with the Enemy Act (TWEA) and the United Nations Participation Act (UNPA) provide further authority for the President to restrict trade and impose sanctions when mandated by the United Nations Security Council. While Congress passes statutes authorising the President to promulgate sanctions, there are concerns about the lack of substantial checks on the President's use of these powers, with some calling for reforms to rebalance the power between Congress and the executive.

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The US President's authority to impose sanctions

The Trading with the Enemy Act (TWEA), passed by Congress in 1917 during the United States' entry into World War I, grants the President broad powers to restrict trade between the United States and foreign countries or individuals considered enemies during wartime. While TWEA remains the basis for sanctions against Cuba, it is no longer frequently invoked.

The most commonly used authority for imposing sanctions today is the International Emergency Economic Powers Act (IEEPA). Passed by Congress in 1977, IEEPA provides the President with extensive powers to impose economic sanctions during national emergencies. It allows the President to target individuals, entities, and countries deemed to pose an ""unusual and extraordinary threat"" to national security or foreign policy interests. However, critics argue that IEEPA has been overused and lacks sufficient congressional oversight.

Additionally, the United Nations Participation Act (UNPA) empowers the President to impose economic sanctions when mandated by the United Nations Security Council under Article 41 of the UN Charter. This allows the President to investigate, regulate, and prohibit economic relations with countries or individuals to maintain international peace and security.

The President also has the authority to waive or delay the imposition of sanctions in certain circumstances. For example, if it is determined that waiving sanctions is in the national security interests of the United States or if consultations with a foreign government are ongoing.

It is important to note that while the President has significant authority in imposing sanctions, the process is regulated by other branches of the government. The Office of Foreign Assets Control (OFAC) plays a crucial role in enforcing sanctions regulations, and Congress can also pass additional legislation or challenge the President's use of sanction powers through court proceedings.

The International Emergency Economic Powers Act (IEEPA)

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 the power to regulate or prohibit communication that "does not involve a transfer of anything of value", imports or exports of information or any informational materials, or transactions incidental to travel. Donations intended to relieve human suffering, such as food, clothing, or medicine, are also excluded unless the President deems their inclusion necessary.

The IEEPA was drafted to permit presidential emergency declarations only in response to threats originating outside the United States. The President may exercise all authorities provided under sections 203 and 205 of the IEEPA to carry out this section. The President may also waive the application of sanctions under this section with respect to a foreign person if, not later than 15 days prior, they submit to the appropriate congressional committees a written determination and justification that the waiver is important to the national security interests of the United States.

The most common legislative authority the President relies on to impose sanctions today is the IEEPA. Some examples of its usage include sanctions against Nicaragua from 1985 to 1990 for aggressive activities in Central America, and against South Africa from 1985 to 1991 for maintaining apartheid.

The United Nations Participation Act (UNPA)

The UNPA gives the President the authority to impose economic sanctions when mandated by the United Nations Security Council, as outlined in Article 41 of the UN Charter. This allows the President to investigate, regulate and prohibit economic relations with any country or national thereof, including any US person or property interest under US jurisdiction. The President can also negotiate agreements with the Security Council, subject to the approval of Congress.

The UNPA has been used by US Presidents to impose sanctions on countries acting in contravention of US foreign policy and national security objectives. For example, President Reagan used the UNPA to impose sanctions on South Africa in 1985 in response to apartheid, and President Clinton prohibited specific financial transactions with Rwanda in 1994.

The President can also waive the application of any sanction on a foreign person if they determine that doing so is in the national security interests of the United States. The President must notify Congress at least 20 days before the waiver takes effect, providing a rationale for the decision.

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The Trading with the Enemy Act (TWEA)

The TWEA was first used by President Woodrow Wilson, who created the War Trade Board under Vance McCormick to control all US imports and exports. This sought to conserve supplies and shipping for the Allies and prevent goods from reaching enemy hands. Additionally, the Office of Alien Property Custodian (APC) was established under TWEA, empowering the confiscation of property from those posing a potential threat to the war effort.

In 1933, President Franklin D. Roosevelt issued Proclamation 2039, declaring a national emergency and imposing a bank holiday. Roosevelt acknowledged the legal ambiguity of his actions, as the US was not officially at war. He subsequently sought congressional ratification through the Emergency Banking Relief Act, which amended TWEA to authorise its use during any "period of national emergency declared by the President." Roosevelt then issued Executive Order 6102 to restrict gold ownership.

The TWEA has been invoked in various historical contexts, including against Cuba following the Cuban Missile Crisis, the Bay of Pigs invasion, and the nationalisation of US property by the Castro regime. It was also used to sanction China during World War II and the Korean War, Cambodia during the Vietnam War, and North Korea in 1950. Today, TWEA remains the underlying legislation for sanctions against Cuba.

The President of the United States has significant authority to impose sanctions through executive orders, as outlined in the TWEA. They can delay the imposition of sanctions for up to 90 days to pursue consultations with foreign governments. Additionally, the President may waive sanctions on foreign persons if they determine that doing so is in the national security interests of the United States.

Congress's authority to regulate sanctions

The US Constitution grants Congress the power to regulate international commerce. This includes the authority to impose economic sanctions on foreign countries, companies, or individuals. Congress typically passes statutes authorising the President to implement sanctions through executive orders. The President's authority to impose sanctions stems from Article II, Section 3 of the Constitution, which states that the Executive shall "take Care that the Laws be faithfully executed".

The key legislative authorities underpinning US sanctions are the Trading with the Enemy Act (TWEA), the International Emergency Economic Powers Act (IEEPA), and the United Nations Participation Act (UNPA). Congress passed the TWEA in 1917 to "define, regulate, and punish trading with the enemy". This act granted the President broad powers to restrict trade between the US and its enemies during wartime. Today, the TWEA is only used as the underlying legislation for sanctions against Cuba.

The IEEPA, passed in 1977, provides a clearer demarcation of the President's emergency powers. It allows the President to declare a national emergency and issue executive orders to address threats to national security, foreign policy, or economic stability. The IEEPA has become the most common legislative authority for imposing sanctions. The UNPA is another source of legislative authority, empowering the President to impose economic sanctions when mandated by the United Nations Security Council pursuant to Article 41 of the UN Charter.

While the President has significant authority to impose sanctions, Congress has placed constraints on the President's ability to unilaterally lift them. For example, in the case of sanctions against Russia for its aggression in Ukraine, Congress has imposed restrictions on the President's power to lift those sanctions without congressional approval.

In summary, while the President has the constitutional authority to impose sanctions, Congress plays a crucial role in legislating and delegating this power. Congress also retains the authority to regulate and constrain the President's actions regarding sanctions, ensuring a balance of powers in foreign policy decision-making.

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