International Emergency Economic Powers Act (1977)

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International Emergency Economic Powers Act (1977)

Michael P. Malloy

Congress passed the International Emergency Economic Powers Act (IEEPA) (P.L. 95-223, 91 Stat. 1626) in 1977 as a refinement of the Trading with the Enemy Act (TWEA), which at the time provided a source of presidential emergency authority, as well as wartime authority. Subject to requirements that the president consult with and report periodically to Congress, IEEPA authorizes the president "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the president declares a national emergency with respect to such threat." Under this authority the president may "investigate, regulate, or prohibit any transaction in foreign exchange," and "investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any ... exportation of ... any property in which any foreign country or a foreign national thereof has any interest." IEEPA gives the president broad authority over financial transactions and property in which any foreign country, any citizen or national of a foreign country, or any other person aiding the foreign country, has any interest, provided that the president first declares a national emergency under the act.

Such cases as the Supreme Court's decision in Dames & Moore v. Regan (1981), the First Circuit's decision in Chas. T. Main Int'l v. Khuzestan Water & Power Auth. (1981), and the D.C. Circuit's decision in American Int'l Group v. Islamic Republic of Iran (1981) have recognized that the power given to the president by IEEPA is "sweeping and broad."

IEEPA essentially recodifies, for peacetime emergency use, the wartime economic powers available to the president under Section 5(b) of TWEA. The two statutory authorities differ in that IEEPA does not contain the following TWEA powers still available to the president during time of war:

• the power to "vest" (i.e. expropriate) property in which foreign states or their nationals have an interest;
• the power to regulate purely domestic transactions;
• the power to regulate gold or silver coin or bullion;
• the power to seize records.

In addition, IEEPA contains new restrictions on certain powers that were otherwise available to the president under TWEA. Thus, under the new authority, the president does not have power to: regulate or prohibit personal communications not involving the transfer of anything of value; or regulate uncompensated transfers of articles for humanitarian aid, unless he determines that transfers of this type would either seriously impair his ability to deal with the emergency situation; respond to coercion against the potential donor or recipient; or endanger U.S. armed forces. In Veterans Peace Convoy, Inc. v. Schultz (1988), the Southern District ofTexas interpreted the humanitarian aid exception very broadly, to include even the donation of trucks carrying humanitarian goods.

Unlike the original version of TWEA, IEEPA explicitly excludes any authority to regulate or prohibit, directly or indirectly:

any postal, telegraphic, or other personal communication, which does not involve a transfer of anything of value; ... or the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.

However, this exemption is only available for exports that are not otherwise controlled under the national security and foreign policy provisions of the Export Administration Act, such as exports of goods and technology that may have a military use.

In the Senate Report accompanying the passage of IEEPA, the Senate Foreign Relations Committee added that IEEPA also did not apply to donations and humanitarian contributions, so long as such transfers did not subvert the effective exercise of emergency authority. An amendment of IEEPA, enacted in 1988 and amended in 1994, broadened and strengthened the exemption for informational materials. According to the House Conference Report, the amendment adopted in 1988 was intended to ensure "that no embargo may prohibit or restrict directly or indirectly the import or export of information that is protected under the First Amendment to the U.S. Constitution. The language was explicitly intended ... to have a broad scope." However, overly narrow interpretations of the exception by the Treasury Department prompted the 1994 amendment to "facilitate transactions and activities incident to the flow of information and informational materials without regard to the type of information, its format, or means of transmission, and electronically transmitted information."

The first use of IEEPA by the president occurred during the 1979–1981 crisis involving Iran's holding U.S. diplomatic and consular personnel stationed in Teheran as hostages. Since then, IEEPA has frequently been invoked by the president against Libya, Iran (beginning again in 1985 and unrelated to the previous hostage crisis), Iraq (from 1990 to 2003), international terrorists and countries supporting terrorism, and the former Taliban regime in Afghanistan, among many other targets. IEEPA is the broadest statute available to the president to impose economic sanctions. In contrast, for example, the United National Participation Act of 1945 requires a mandate from the U.N. Security Council before sanctions can be imposed. The Iran and Libya Sanctions Act of 1996 is limited to those two countries and makes only specific limited powers available to the president. The Cuban Liberty and Democratic Solidarity Act of 1996 (known as the Helms–Burton Act) applies only to Cuba and imposes only specific limited sanctions against that country.

See also: Trading with the Enemy Act.