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Can President Trump order American companies not to do business in China? Well, not in a tweet. But unfortunately, he seems to have discovered the International Emergency Economic Powers Act. 1/13
As I wrote in @TheAtlantic back in December, IEEPA is one of the president’s most potent legal weapons—with enormous untapped potential for abuse. 2/13 theatlantic.com/magazine/archi…
To invoke IEEPA, the president need only declare that there is a “national emergency” that (1) emanates “in whole or substantial part outside the United States,” and (2) poses an “unusual and extraordinary threat” to national security, foreign policy, or the economy. 3/13
“Unusual and extraordinary threat” might sound like a non-trivial bar for the president to clear. But here’s the catch: it all rests the president’s say-so. There’s no factual showing that he has to made, no ratification by Congress, no finding by a court. 4/13
Once he declares the emergency, POTUS can take sweeping economic action against persons or entities that he (or a named agency head) designates. The law expressly allows him to block any financial transactions between U.S. persons/entities and designated persons/entities. 5/13
At first, presidents used IEEPA as Congress almost certainly intended: to impose sanctions on hostile foreign governments. But over the decades, its use has expanded. 6/13
Designated entities now include foreign political factions, terrorist groups, and suspected drug traffickers/cybercriminals. They also include Americans who are deemed to contribute in some way to the foreign threat. 7/13
Moreover, the “unusual and extraordinary threat” requirement is routinely honored in the breach. IEEPA has become a standard tool of foreign policy, not an exceptional response to true national emergencies. 8/13
Congress has been OK with all of this, because presidents have used IEEPA in ways Congress approved of—and because foreign sanctions were just one more thing Congress wouldn’t have to deal with. (Legislating is easier when you let the president do it!) 9/13
In fact, when the Senate Homeland Security committee recently approved legislation to give Congress greater control over presidents’ use of emergency powers, it specifically exempted IEEPA from the bill’s safeguards. 10/13
But the day of reckoning might finally be coming. Now that Trump has discovered this handy legal tool, threats to impose tariffs on Mexican imports and to prohibit companies from doing business with China are likely just the beginning. 11/13
IEEPA unquestionably has beneficial uses and has been an important tool for foreign policy. The fact that it has been used wisely on past occasions does not mean it is immune to abuse in the future. Nor does it mean that the law must be written as broadly as it is. 12/13
It’s time to acknowledge that IEEPA gives the president far too much discretion, with far too few safeguards. Like the National Emergencies Act itself, this law must be reformed to limit what the president can do and to bolster Congress’s role as a check against abuse. 13/13
