Cross-posted from Just Security
Last week, President Donald Trump declared another “national emergency”—the fifth of his presidency—bumping up the number of currently active emergencies in the United States to 33, for those keeping track at home. This time, it was over threats to U.S. technology.
While this most recent national emergency declaration did not receive as much attention—nor inspire as much condemnation―as Trump’s last one, which he made back in February to secure border wall funding that Congress refused to appropriate, it may also be an abuse of the president’s emergency powers.
The differences in the reactions are perhaps not surprising, as this most recent declaration has much more in common with Trump’s first three emergency declarations—which also received relatively little attention—than the border wall declaration. Most significantly, all of Trump’s non-border wall emergency declarations rely primarily on the same emergency power—the International Emergency Economic Powers Act (IEEPA)—to address the putative national emergency, and they are all focused primarily on foreign actors.
As the Brennan Center has documented before, IEEPA has been by far the most commonly used of the 123 emergency powers a president can activate under the National Emergencies Act, which took effect in 1978. Fifty-five of the 61 national emergencies declared since then have invoked IEEPA and its powers that—when used to their maximum―seek to financially asphyxiate targeted countries, entities, or individuals. IEEPA sanctions also have the dubious distinction of being the emergency power utilized by the longest running national emergency, which was declared in 1979 and concerned the hostage crisis in Iran. It is still in effect today, some four decades later.
IEEPA (50 U.S.C. § 1701, et seq.), enacted in 1977, can be used to address
“any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, if the President declares a national emergency with respect to such threat.”
It allows the government to “investigate, regulate, or prohibit” various types of financial transactions concerning designated entities, and to exercise near total control over assets “in which any foreign country or a national thereof has any interest.” An additional provision of the law, which applies “when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals,” allows the president to seize the property of foreign entities or persons. As such, IEEPA is an incredibly powerful sanctions tool, and while IEEPA sanctions are primarily directed at foreign threats, they can—and have—been used against entities within the United States.
As the Brennan Center’s Elizabeth Goitein pointed out in testimony submitted to a House Judiciary Subcommittee in February, IEEPA has become in some ways a routinized foreign policy tool, which has the effect of “cheapen[ing] the currency of national emergencies.” She recounted how after the Obama administration declared a “national emergency” in order to place sanctions on Venezuela through IEEPA, the administration was forced to explain that the language in the emergency declaration about how Venezuela posed a threat to the United States was merely required window-dressing, and that according to one official, administrations “just have a framework for how [they] formalize these orders.”
Much like the National Emergencies Act, which does not define “national emergency,” IEEPA does not define what qualifies as an “unusual and extraordinary threat,” thereby allowing the president significant leeway in interpreting those terms. As IEEPA’s frequent invocation—and multiple annual renewals―reflect, presidents have not been shy about utilizing those powers, in contravention of the expectations of some members of Congress at the time of its passage. For instance, the House Committee on International Relations believed that IEEPA—and its subjugation to the NEA—encompassed “a recognition that emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems.” They continued:
“A national emergency should be declared and emergency authorities employed only with respect to a specific set of circumstances which constitute a real emergency, and for no other purpose. The emergency should be terminated in a timely manner when the factual state of emergency is over and not continued in effect for use in other circumstances. A state of national emergency should not be a normal state of affairs.”
Trump’s first three national emergency declarations invoking IEEPA concerned: “human rights abuse and corruption”; “foreign interference in a United States election”; and governmental repression and violence in Nicaragua. Last week’s emergency declaration, formally titled “Securing the Information and Communications Technology and Services Supply Chain,” states that the “unusual and extraordinary threat” in this instance is the use of “information and communications technology or services” in the United States that are “designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries” that would increase those adversaries’ abilities to “create and exploit vulnerabilities in information and communications technology.” The technology and services encompassed by the declaration are further defined as “any hardware, software, or other product or service primarily intended to fulfill or enable the function of information or data processing, storage, retrieval, or communication by electronic means, including transmission, storage, and display.”
The emergency declaration Trump issued last week does not itself identify any IEEPA targets, i.e., who or what will be sanctioned, although many expect that it will ultimately be used against Chinese telecom giant Huawei. Instead, it delegates that function to the Secretary of Commerce. It also delegates to the secretary decisions as to how to implement any sanctions, and it permits the secretary to further delegate those functions to other Commerce employees. The declaration gives the Secretary of Commerce 150 days to come up with plans to implement sanctions. (It is reasonable to question whether there isn’t some tension between the declaration of a national emergency and a five-month runway to come up with a plan.)
Some may be under the impression that the Trump administration has, in fact, already designated Huawei to be sanctioned under the emergency declaration issued last week. That is likely because on the same day that Trump declared the national emergency, the Commerce Department placed Huawei and some affiliates on its “Entity List.”
The Entity List “identifies entities reasonably believed to be involved, or pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States.” Interestingly, the central basis given for finding that Huawei falls within those parameters is that Huawei itself has been indicted for violating IEEPA sanctions concerning trade with Iran. This Entity List designation, however, is a separate sanctions regime, which has the effect of preventing American companies from selling to Huawei without a special license (which reportedly will be significantly disruptive of Huawei’s business and has already resulted in Google ceasing to provide them with the Android operating system, and chip-maker ARM ceasing to sell to them as well). IEEPA designation would potentially impose economic restrictions far greater than not being able to purchase American products, and could include American companies not being able to purchase Huawei products by designated entities.
In contrast to February, when it was easy to debunk Trump’s claims regarding the situation at the border, it is more difficult for the outside observer to assess whether the factual predicate for declaring a “national emergency” under the National Emergency Act exists in this instance, as much of the information the government has regarding attempts to infiltrate American telecom networks is presumably classified. Moreover, the threat of foreign espionage is real, and should not be discounted. But it cannot be ignored that this emergency declaration comes in the midst of a trade war with China, and is presumed to be ultimately used against a company—Huawei—which this administration has been publicly discussing as a security concern for a significant amount of time. Indeed, some reports state that this emergency declaration has been under consideration for more than a year, and only proceeded “as trade talks hit an impasse.” Others have pointed out that Trump has previously made direct links between actions in the national security realm and trade negotiations, for example suggesting that he could interfere in a potential criminal action against a Huawei executive if China and the U.S. reached a trade deal. He then brazenly doubled down on this approach this week:
“Huawei is something that’s very dangerous. You look at what they’ve done from a security standpoint, from a military standpoint, it’s very dangerous. So it’s possible that Huawei even would be included in some kind of a trade deal. If we made a deal, I could imagine Huawei being possibly included in some form, some part of a trade deal.”
Should the emergency declaration, and any IEEPA designation, be used purely as leverage in a trade war, or as a way to avoid engaging with Congress to address security concerns, it would clearly be an abuse of the intent of emergency powers.