Forcing Constraint: The Case for Amending the International Emergency Economic Powers Act
Luong, Jason, Texas Law Review
From which may be drawn a general rule, which never or very rarely fails, that whoever is the cause of another becoming powerful, is ruined himself.1
Machiavelli recognized that how a nation deals with threats to its national security not only affects its power relative to other nations but, equally importantly, determines divisions of power within that nation. This is especially true in a republican form of government where the key to maintaining the integrity of that system of government is the separation of powers. Such is the case in the United States. By preventing the accumulation of power in any one branch of government, the doctrine of separation of powers among the legislative, executive, and judiciary branches acts as a fundamental safeguard for our constitutional form of government. Fidelity to this doctrine is often compromised when exigencies require a swift response to foreign threats. When that response entails the use of military force, attention is naturally drawn to the possibility of infringement on the separation of powers and the nondelegation doctrine. Equally problematic, however, and worthy of attention is a vast array of complementary or lesser war powers short of the use of military force that are granted to the president, but whose use is not as prominent and not as open to public scrutiny. Such lesser war powers are contained in the National Emergency Act (NEA)2 and the International Emergency Economic Powers Act (IEEPA).3 These Acts are linked together because a declaration of a national emergency under the former triggers the broad regulatory powers enumerated in the latter.
Under the IEEPA, the president has the power to fully regulate trade with other nations as well as impose criminal sanctions on American citizens who violate such regulations. This Note addresses the constitutional and pragmatic viability of the International Emergency Economic Powers Act and the National Emergency Act in light of the Supreme Court's revival of the nondelegation doctrine. Though the Court has examined the nondelegation doctrine mainly in the context of domestic legislation, the continued usurpation of legislative authority in foreign affairs by the executive branch, coupled with a changing idea of the proper balance of power in foreign affairs, warrants a renewed examination of the allocation of decisionmaking powers under the IEEPA and the NEA. Part I of this Note examines the growing divergence between the limited degree of discretion allowed to the executive in domestic legislation and the tremendous discretion given the president under the NEA and the IEEPA due to the lack of intelligible principles restricting presidential action under those acts. Part II criticizes how congressional acquiescence and judicial deference to the executive make the coordinate branches meaningless constraints on presidential authority in the area of foreign policy and lead to the usurpation of legislative power in violation of the nondelegation doctrine. Part III concludes that the only workable solution to these problems is not to require intelligible principles but to amend the NEA and the IEEPA to incorporate a "sunset provision" similar to that found in the War Powers Act. Such a provision would require Congress to take affirmative action-either by passing a joint resolution declaring a national emergency or legislation specifically authorizing the president's action-in order to continue the president's authority after an initial declaration of national emergency. By forcing Congress into the decisionmaking process, a sunset provision would provide a means of constraining presidential action under the IEEPA and the NEA. I. The Role of the Separation of Powers and the Nondelegation Doctrine in the Allocation of Legislative Authority
As a fundamental safeguard of liberty, the U.S. Constitution divides the legislative, executive, and judicial powers among three branches of government. The founding fathers believed that the separation of powers was essential because "[w]hen the legislative and executive powers are united in the same person or body . …