The International Emergency Economic Powers Act (IEEPA) provides the Executive with emergency authority to act in the realm of foreign affairs and national security. As global power struggles increasingly play out in financial markets as opposed to battle fields, the United States is leveraging global capital markets, banking, and financial systems to effectuate national security goals – and is relying on IEEPA to do so. However, critics argue IEEPA lacks appropriate procedural safeguards given the courts’ general deference to the Executive acting pursuant to national security and the corresponding lack of Congressional oversight.
After assessing various criticisms of IEEPA, this paper rejects proposed IEEPA reforms and argues IEEPA’s existing statutory accountability mechanisms, when paired with proper judicial review under the Administrative Procedure Act (APA), strike a reasonable balance between ensuring accountability and maintaining an effective and flexible foreign policy tool.
In doing so, this paper relies on the recent decision from the D.C. District Court, Xiaomi Corporation, et al., v. Department of Defense, to demonstrate how the APA provides effective procedural constrains on the Executive power when acting pursuant to IEEPA. The Xiaomi decision represents a departure from the judiciary’s traditional deference to the Executive when acting pursuant to IEEPA and presents a compelling case study to consider both the scope of, and limits on, executive power.