Presidential Implementation of Emergency Powers Under the International Emergency Economic Powers Act

Presidential Implementation of Emergency Powers Under the International Emergency Economic Powers Act T h e P re sid en t m ay issue a single ex ecu tiv e o r d e r.in v o k in g the re m a in d e r o f his p o w e rs u n d e r th e In te rn a tio n a l E m e rg e n c y E c o n o m ic P o w e rs A c t, in response to th e situation in Iran , w h ich w o u ld perm it him to block th e p ro p e rty o f Iran ian citizen s as w ell as th at o f th eir g o v e rn m e n t, an d to effect a c o m p le te tra d e em b arg o . T h e P re sid en t m ay d e le g a te th e ex ercise o f all im p lem en tin g p o w e rs to th e S e c re ta ry o f the T reasu ry .

S u ch an o rd e r need n ot d e c la re a n e w em e rg e n c y , but c o u ld sim ply find th at th e u n d e rly in g e m e rg e n c y co n tin u es, an d su ch an o r d e r n eed n ot be acco m p an ied by an im m ed iate rep o rt to C o n g ress.

N ovem ber 21, 1979 M E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L This responds to your question o f N ovem ber 14, 1979, w hether future actions under the International Em ergency E conom ic Powers A ct (IE E P A ) (50 U.S.C. §§ 1701-06 (Supp. I 1977)) that are not within the scope o f Executive O rder No. 12,170 3 C .F.R . 457 (1979) can be authorized by a single executive order invoking all the statute’s powers and granting the Secretary o f the T reasury discretion to take any particular action, or w hether there must be a separate executive order for each increm ental step. Executive O rder No. 12,170, “Blocking Ira­ nian G overnm ent P roperty,” confines itself to blocking the property of “the G overnm ent o f Iran, its instrumentalities and controlled entities and the C entral Bank o f Iran.” T he IE E P A also includes authority to limit or prohibit any transfer o f property subject to U.S. jurisdiction in w hich a foreign national has an interest. § 1702(a). This w ould author­ ize blocking the property o f Iranian citizens as well as that o f their governm ent, and a com plete trade em bargo.1 If the President deter­ mines that the authority to make these rather basic policy decisions should be delegated to the Secretary o f the Treasury, we believe that delegation could be legally accom plished by issuing a single executive order authorizing use o f the IE E P A ’s remaining provisions, and that a blanket delegation o f implementing authority to the Secretary w ould be consistent w ith the statute.

‘T h e legislative history o f the Export A dm inistration A ct o f 1979, Pub. L. No. 96-72, 93 Stat. 503, U.S.C. A pp. § 2401 et seq., makes clear that total trade em bargoes are to be accom plished under the IE E P A , rath er than by export controls. See the conference report, 125 Cong. Rec. 26,593 (1979).

Partial em bargoes can, o f course, be accom plished through export control.

T w o prelim inary points should be made. First, there should be no need for further declarations of national em ergency while the present crisis exists. T he IE E P A allows the exercise o f “any authority” under its substantive grants in § 1702 once an em ergency is declared to deal with an external threat to the national security, but requires a new declaration for a “new threat.” § 1701. This reflects purposes the IE E P A shares with the National Em ergencies Act, 50 U.S.C. § 1601- 51, to prevent the indefinite duration o f national emergencies and to provide Congress an opportunity to term inate any particular em ergency by concurrent resolution. S. Rep. No. 466, 95th Cong., 1st Sess. 2 (1977). T he statute and its history provide little help in defining what is a “new threat” requiring a new declaration o f em ergency, beyond the general purpose o f preventing emergencies from surviving long past their initiating cause. T he situation in Iran seems clearly to constitute a single, continuing em ergency.

Second, the Em ergencies A ct requires the President to specify “ the provisions of law under w hich he proposes that he, or other officers will act.” 50 U.S.C. § 1631. Such a specification is to be made in the * declaration o f em ergency or in “one or more contem poraneous or subsequent executive orders published in the Federal Register and transm itted to Congress.” Id. Invocation o f em ergency powers other than those in the IE E P A to deal with Iran would thus require a new executive order specifying the statutes involved.

The IE E P A appears to assume that the President will take a series of implementing actions under a single declaration of national em ergency, and that not all o f these need be done by executive order. First, under § 1701(a), “any authority” granted by § 1702 may be exercised to deal with a particular threat. Second, the pow ers granted in § 1702 are phrased in a fashion that contem plates a series o f different actions: “ the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherw ise [take authorized substantive ac­ tions].” Third, the requirem ent in § 1703(b) to report to Congress on the exercise o f “any o f the authorities” o f the A ct is clearly tied to the initial declaration o f an em ergency, and is followed in § 1703(c) by a requirem ent for follow-up reports at least each six months, describing actions taken under the statute and im portant new information. F ourth, § 1704 delegates broad pow er to the President to “issue such regula­ tions, . . . as may be necessary” to implement the Act. And fifth, the Em ergencies A ct, 50 U.S.C. § 1641, requires the President to keep a file of his significant orders, “including executive orders,” and requires each executive agency to keep a file o f its rules, issued pursuant to an emergency. These are then to be transm itted prom ptly to Congress.

§ 1641(b).

T he Em ergencies A ct contem plates subdelegation o f presidential functions in tw o provisions mentioned above (§§ 1631, 1641(a-b)). T he IE E P A does not explicitly authorize subdelegation, but there is implicit support for it in the existence o f rulem aking pow er and in references to a num ber o f im plementing actions (e.g., “licenses” in § 1702(a)(1)).

N othing in the statute or its history suggests the unavailability o f the President’s general pow ers o f subdelegation under 3 U.S.C. §§ 301—02, w hich allow delegation o f “any function w hich is vested in the Presi­ dent by law ” to a cabinet m em ber (§ 301), “if such law does not affirm atively prohibit delegation. . . .” (§ 302.)

W e therefore conclude that the President may issue a single execu­ tive o rd er invoking the rem ainder o f his pow ers under the IE E P A , and delegating their exercise to the Secretary o f the Treasury. Such an o rd er could find that the underlying em ergency continues and necessU tates the invocation o f all pow ers remaining under the IE E P A . It could then restate the penultim ate sentence o f Executive O rder No. 12,170, w ith the appropriate changes (italicized here): “T he Secretary is au­ thorized to em ploy all pow ers granted to me by the International Em ergency Econom ic Pow ers A ct regarding the property o f Iran or Iranian nationals. ” It does not appear to be necessary to accom pany o such an order with an immediate report to Congress, for reasons stated above.

Jo hn M. H arm on Assistant Attorney General Office o f Legal Counsel