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EMERG-003 — Emergency Economic Powers as a Substitute for Legislation

Issue Snapshot

Problem: General emergency authority can replace congressional authorization for major sanctions.
Repair: Require threat nexus and legislation for sanctions targeting legal or adjudicative activity.
Vehicle: Emergency Economic Powers Specificity and Adjudicative Independence Act.

Institutional Anomaly

The International Emergency Economic Powers Act (IEEPA) permits the President to regulate transactions and block property after declaring an emergency concerning an “unusual and extraordinary threat” originating substantially outside the United States. The statute also says that those powers may be used only to address that threat. See 50 U.S.C. § 1701.

Those limits do not presently require Congress to enact the particular sanctions policy, a direct and substantial nexus between each target and the declared threat, or specific authorization before economic sanctions are imposed because a person performed judicial, prosecutorial, investigative, defense, evidentiary, or supporting work. The result is a structural substitution risk: a President can describe a disputed international legal process as a foreign-policy emergency and use a general 1977 delegation to implement a sanctions regime that Congress considered but did not enact.

The defect is not disagreement with a particular foreign-policy outcome. It exists whenever either party uses general emergency power to establish a major sanctions policy that Congress has not specifically authorized.

Manifestations of the Failure

Congress enacted a narrower and internally differentiated ICC policy

The American Servicemembers’ Protection Act of 2002 (ASPA) establishes substantial congressional opposition to unconsented International Criminal Court jurisdiction. Among other restrictions, it bars federal, state, and local cooperation with ICC requests, extradition to the ICC, specified support, and use of appropriated funds to assist ICC proceedings against United States citizens or permanent residents. See 22 U.S.C. § 7423.

That enacted baseline is not a general statutory authorization to block the property of judges, prosecutors, witnesses, lawyers, victims’ representatives, or organizations that supply information to a court. Congress has also preserved authority to assist international efforts involving foreign nationals accused of genocide, war crimes, or crimes against humanity and expressly permits assistance to ICC investigations and prosecutions of foreign nationals related to Ukraine. See 22 U.S.C. § 7433. The statutory policy is therefore oppositional in some respects and selectively cooperative in others.

Congress considered but did not enact a new ICC sanctions mandate

H.R. 23, the proposed Illegitimate Court Counteraction Act, would have required property-blocking and entry sanctions against persons who participated in or materially assisted specified ICC action. The House passed the bill 243–140 on January 9, 2025. On January 28, the Senate voted 54–45 for cloture on the motion to proceed, short of the required threshold; the bill did not become law. See Congress.gov bill text and action history.

Failure to enact a bill does not itself create a statutory prohibition, and ARRP does not infer the intent of individual legislators from that result. It does establish the narrower institutional fact that Congress had not enacted the specific sanctions authority contained in H.R. 23 when the executive branch created a substantially similar sanctions program through IEEPA.

Executive Order 14203 supplied the un-enacted sanctions policy

On February 6, 2025—nine days after the failed Senate cloture vote—Executive Order 14203 declared that any ICC effort to investigate, arrest, detain, or prosecute broadly defined protected persons constituted an unusual and extraordinary threat. The order authorized property blocking against persons who engaged in those efforts, supplied material assistance or services, or acted for a blocked person. It also invoked immigration authority to suspend entry. See Executive Order 14203.

The order and H.R. 23 are not identical. The bill would have made specified sanctions mandatory and supplied detailed statutory definitions; the order delegates discretionary designation authority within the executive branch. The significant point is functional: the President used general emergency and immigration delegations to establish the central property-blocking and entry-sanctions policy that Congress had considered in specific legislation but had not enacted.

The sanctions program reached adjudicative personnel and supporting organizations

The Office of Foreign Assets Control identifies IEEPA, the National Emergencies Act, Executive Order 14203, and 31 C.F.R. part 528 as the legal framework for the ICC-related sanctions program. See OFAC’s program page. OFAC designated the ICC Prosecutor in February 2025, four ICC judges in June 2025, four additional judges in August 2025, the nongovernmental organization Al-Haq in September 2025, and additional judges in December 2025. See, for example, the February 2025, June 2025, August 2025, September 2025, and December 2025 OFAC actions.

On July 13, 2026, Reuters reported that a State Department official described a broader effort to isolate or “dismantle” the ICC and said that additional sanctions, travel restrictions, action against affiliated organizations, and diplomatic pressure on other states were under consideration. See Reuters. Those reported future measures remain contemplated rather than established facts. The existing executive order, regulations, and designations are implemented policy.

Reversible executive policy produces institutional instability

This is not the first IEEPA sanctions program aimed at ICC-associated persons. Executive Order 13928 created an ICC program in 2020; Executive Order 14022 terminated it in 2021; Executive Order 14203 created a new program in 2025. The Congressional Research Service records both episodes within the broader expansion of IEEPA from country-based emergencies to sanctions against groups and individuals. See CRS, The International Emergency Economic Powers Act: Origins, Evolution, and Use.

That sequence demonstrates the institutional problem independently of the merits: a consequential international sanctions policy can be created, rescinded, and recreated by successive Presidents without new legislation.

Resulting Damage

Using general emergency authority as a substitute for specific legislation can:

  1. displace Congress from deciding whether a new sanctions category should exist and what limits, exceptions, waivers, and reporting duties should govern it;
  2. convert a disputed legal or diplomatic position into an “emergency” without requiring a direct and substantial connection between each target and a concrete external threat;
  3. impair judicial and prosecutorial independence by attaching severe economic consequences to ordinary adjudicative activity and to lawyers, witnesses, experts, victims’ representatives, or organizations that support it;
  4. chill lawful transactions by United States persons who cannot safely determine how far “material assistance” or “services” prohibitions extend;
  5. produce rapid policy reversals across administrations and reduce the reliability of United States commitments to allies and international institutions; and
  6. create tension within enacted congressional policy when broad pressure on an institution may weaken capacities Congress expressly preserved for investigations involving foreign nationals in Ukraine.

The last point does not establish that any specific Ukraine investigation has been obstructed. It identifies a statutory-coherence risk: executive action aimed at weakening the institution as a whole may work against a limited cooperation channel Congress deliberately left open.

Underlying Weakness

50 U.S.C. § 1702 grants expansive transactional and property-blocking authority and contains important exceptions for personal communications, humanitarian donations, informational materials, and travel. It does not contain a comparable rule for adjudicative and related legal activity or require specific congressional authorization before that activity becomes the basis for sanctions.

50 U.S.C. § 1703 requires consultation and reports explaining the emergency, authority, action, necessity, and affected countries. Reporting does not force the executive to identify a specific enacted sanctions mandate, publish the individualized nexus for each designation, or obtain legislation before creating a new protected-activity sanctions category.

The National Emergencies Act permits Congress to terminate an emergency by enacted joint resolution and directs each chamber to consider termination every six months. See 50 U.S.C. § 1622. Because a termination resolution ordinarily must survive presentment and a possible veto, that procedure asks Congress to assemble a veto-proof coalition to reclaim authority after the President has acted. CRS reports that no national emergency has been terminated without presidential consent and that neither chamber has performed the required six-month review for an IEEPA emergency. See the CRS IEEPA report.

The result is a one-way institutional ratchet: a simple presidential declaration can create the program, while effective congressional reversal may require supermajority support.

Proposal Survey

Congress has used at least three relevant models.

First, IEEPA itself contains categorical exceptions for communications, humanitarian donations, informational materials, and travel. A protected-activity limitation therefore fits the statute’s existing architecture.

Second, Congress often legislates sanctions expressly. For example, 50 U.S.C. § 1708 identifies covered cyber-espionage conduct and authorizes IEEPA blocking against defined persons. H.R. 23 followed the same specific-authorization model for ICC sanctions, although it did not become law.

Third, National Emergencies Act reform proposals have used a congressional-approval model for emergencies continuing beyond a short period. CRS identifies repeated proposals requiring a joint resolution of approval, including a 30-day model. That broader declaration, duration, termination, findings, and review framework is consolidated in EMERG-001. EMERG-003 instead addresses the narrower substantive question: whether general emergency power authorizes the particular sanctions category at all.

Least-Complex Adequate Remedy

The least-complex adequate remedy is a targeted amendment to existing law rather than a new tribunal or a comprehensive rewrite of emergency law. It should:

  1. require each IEEPA action to be reasonably tailored to the specific conduct described in the emergency report and supported by a direct and substantial nexus to the declared threat;
  2. prohibit property, transaction, entry, or visa sanctions based substantially on covered adjudicative activity unless an Act of Congress specifically authorizes that category;
  3. prevent circumvention through sanctions against lawyers, witnesses, experts, service providers, or organizations solely because they assist covered activity;
  4. preserve sanctions based on independently sanctionable conduct such as corruption, violence, terrorism, cyber intrusion, theft, or obstruction, when established without treating the adjudicative activity itself as the offense;
  5. require an individualized unclassified explanation, with a classified annex where necessary;
  6. provide expedited review in the United States District Court for the District of Columbia and ordinary appeal to the D.C. Circuit; and
  7. require existing covered restrictions to be reviewed and either placed on a specifically enacted basis or terminated after a short transition.

Repair and Prevention

For existing programs, the executive branch would receive 60 days to identify a specific statutory authorization or an independent sanctionable basis for each covered restriction. A restriction lacking either basis would terminate, blocked property would be released subject to unrelated lawful restraints, and covered list entries would be removed.

Prospectively, the statute would force the political branch constitutionally responsible for legislation to decide whether judicial or related legal activity should itself trigger sanctions. A President could still respond immediately to independently wrongful conduct under IEEPA or another statute. What the President could not do is convert the ordinary work of an international or foreign adjudicative body into a sanctions category without Congress enacting that policy.

Proposed Legislation

Relationship to Adjacent Proposals

  • EMERG-001 owns general emergency declarations, termination, renewal, findings, and judicial review. EMERG-003 supplies only the findings and cause of action needed to enforce its narrower substantive limit.
  • CONG and WAR issues may address international commitments or armed conflict, but this proposal does not regulate treaty withdrawal, military force, or ordinary diplomatic advocacy.
  • JUD-011 is not the primary remedy. The defect is the scope of delegated emergency authority before a new congressional mandate exists, not executive nullification of an enacted mandate.

Budgetary Impact Statement

Preliminary classification: Low administrative and litigation impact. Treasury, State, Justice, and the federal courts already administer designations, licenses, visa restrictions, reports, and sanctions litigation. The proposal adds individualized explanations, transition review, and expedited cases but creates no new agency, tribunal, judgeship, grant program, or entitlement. The first draft directs implementation from otherwise available appropriations. The further internal review should test likely review volume and whether a narrow authorization is needed for temporary staffing or systems changes.

Note: Preliminary ARRP assessment only; not a CBO, OMB, agency, or legislative-counsel score.

Proposal Scoring

Proposal Quality Score: 0 / 100 (Unscored candidate)
Required Electoral Environment: Unified congressional enactment or sufficient cross-party support to overcome presidential opposition
Development Priority: High

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Internal Review Status: First statutory draft complete; internal project review pending
Last Internal Review: HOR-030 integration and initial statutory draft
Scoring Standard: 2026-06-27.2; Scoring Basis: Current unscored status
Next Review: Internal project review of statutory scope, immigration coordination, judicial review, transition, and implementation
Full Review History: EMERG-003 review history

Annotation

This proposal deliberately does not decide whether the United States should join the Rome Statute, recognize a particular ICC exercise of jurisdiction, cooperate with the ICC, fund the ICC, surrender a person, or support any particular investigation or prosecution. ASPA’s enacted noncooperation rules and its limited assistance authority remain in place.

The proposal also does not treat H.R. 23’s failure as a legal veto. Legislative inaction has multiple possible explanations and ordinarily carries little interpretive weight. The relevant fact is more limited: no specific ICC sanctions act had been enacted, so the executive program depended on general IEEPA and immigration delegations rather than the sanctions policy Congress had considered in express terms.

Congress would remain free to enact substantively identical sanctions after debate and presentment. The reform assigns that decision to legislation; it does not predetermine the decision.

Source Notes