EMERG-003 — Emergency Economic Powers Specificity and Adjudicative Independence Act¶

A BILL¶

To amend the International Emergency Economic Powers Act and the Immigration and Nationality Act to require a direct and substantial nexus between emergency measures and a declared threat, to require specific congressional authorization for sanctions based substantially on adjudicative and related legal activity, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.¶

This Act may be cited as the “Emergency Economic Powers Specificity and Adjudicative Independence Act”.

SEC. 2. PURPOSES.¶

The purposes of this Act are to—

(1) preserve the International Emergency Economic Powers Act as a means of responding to unusual and extraordinary threats originating substantially outside the United States;

(2) prevent a general emergency delegation from operating as a substitute for legislation establishing a new sanctions category;

(3) require Congress to speak specifically before ordinary adjudicative, prosecutorial, investigative, defense, evidentiary, representational, or supporting activity becomes a substantial basis for property, transaction, entry, or visa sanctions;

(4) preserve the authority of the United States to sanction independently wrongful conduct under otherwise applicable law; and

(5) provide prompt and uniform judicial review of the limits enacted by this Act.

SEC. 3. SUBSTANTIVE LIMITS ON INTERNATIONAL EMERGENCY ECONOMIC POWERS.¶

Section 203 of the International Emergency Economic Powers Act (50 U.S.C. § 1702) is amended by adding at the end the following:

“(d) Specificity and adjudicative-activity limits.¶

“(1) Direct-nexus requirement.—The authority granted by this section may be exercised with respect to a person, property, transaction, or category of activity only if—

“(A) the action is reasonably tailored to address specific conduct or circumstances identified in a report submitted under section 204; and

“(B) a direct and substantial nexus exists between the person, property, transaction, or category of activity and the unusual and extraordinary threat for which the national emergency was declared.

“(2) Covered adjudicative activity.—

“(A) Specific authorization required.—Except as provided in subparagraph (B), the authority granted by this section may not be exercised against a person or with respect to property, a transaction, or a service if covered adjudicative activity is a substantial basis for the action, unless an Act of Congress specifically authorizes the sanction with respect to the court, tribunal, proceeding, or category of activity at issue.

“(B) Independent sanctionable conduct.—Subparagraph (A) does not prevent action based on independently sanctionable conduct if—

“(i) the conduct satisfies every element required by otherwise applicable statutory authority without treating covered adjudicative activity, institutional affiliation, a legal position, or the outcome of a proceeding as the wrongful act; and

“(ii) the action would be authorized on the same evidentiary record if the person had no relationship to the court, tribunal, or proceeding.

“(C) No authorization by implication.—Specific authorization under subparagraph (A) may not be inferred solely from—

“(i) this chapter or another generally applicable delegation of emergency authority;

“(ii) an appropriation, a limitation on cooperation or assistance, or a statement of congressional policy that does not expressly authorize the sanction;

“(iii) Congress’s consideration, passage by one House, failure to enact, or failure to consider a bill or resolution; or

“(iv) the President’s constitutional authority to conduct foreign relations.

“(3) Anti-circumvention.—The authority granted by this section may not be exercised against a person on the ground that the person provided material, financial, technological, professional, evidentiary, representational, administrative, or other support for covered adjudicative activity when that support is itself covered adjudicative activity and specific authorization described in paragraph (2)(A) has not been enacted.

“(4) Individualized determination.—Before taking an action to which paragraph (2) may apply, the President or the officer exercising delegated authority shall make an individualized written determination identifying—

“(A) the specific conduct on which the action is based;

“(B) the direct and substantial nexus required by paragraph (1);

“(C) whether covered adjudicative activity is a substantial basis for the action;

“(D) any Act of Congress supplying the specific authorization required by paragraph (2)(A); and

“(E) if paragraph (2)(B) is invoked, the independently sanctionable conduct and statutory authority on which the action rests.

“(5) Definitions.—In this subsection:

“(A) Covered adjudicative activity.—The term ‘covered adjudicative activity’ means activity ordinarily incident to the operation of a foreign or international court, tribunal, commission, or other adjudicative body, including—

“(i) judging, adjudicating, issuing process, or administering a docket;

“(ii) investigating, prosecuting, defending, providing legal representation or advice, submitting an amicus presentation, or seeking review;

“(iii) testifying, supplying evidence, serving as an expert, assisting a victim or witness, preserving records, or conducting forensic or factual analysis; and

“(iv) providing financial, technological, professional, administrative, security, translation, travel, communications, or other services ordinarily incident to an activity described in clauses (i) through (iii).

“(B) Independently sanctionable conduct.—The term ‘independently sanctionable conduct’ includes conduct such as bribery, corruption, violence, a threat of violence, material support for terrorism, malicious cyber activity, theft, espionage, witness intimidation, evidence destruction, or obstruction, but only when the conduct independently satisfies otherwise applicable statutory criteria as required by paragraph (2)(B).

“(C) Specific authorization.—The term ‘specifically authorizes’ means that an Act of Congress identifies the court, tribunal, proceeding, or objectively defined category of adjudicative activity and expressly authorizes the property, transaction, entry, or visa sanction to be imposed.”.

SEC. 4. REPORTING AND PUBLIC EXPLANATION.¶

(a) Immediate report.¶

Section 204(b) of the International Emergency Economic Powers Act (50 U.S.C. § 1703(b)) is amended—

(1) in paragraph (5), by striking the period and inserting a semicolon; and

(2) by adding at the end the following:

“(6) the direct and substantial nexus required by section 203(d)(1); and

“(7) whether covered adjudicative activity, as defined in section 203(d)(5), is within the contemplated scope of the action and, if so, the Act of Congress supplying the specific authorization required by section 203(d)(2)(A).”.

(b) Public explanation of covered action.¶

Section 204 of the International Emergency Economic Powers Act (50 U.S.C. § 1703) is amended by adding at the end the following:

“(e) Public explanation of covered action.¶

“(1) Not later than 7 days after taking an action for which an individualized determination is required under section 203(d)(4), the President shall publish in the Federal Register an unclassified explanation containing the information required by subparagraphs (A) through (E) of that paragraph.

“(2) Information may be omitted from the public explanation only to the extent that the President specifically determines that disclosure would reveal properly classified information, an intelligence source or method, or information protected from disclosure by another Act of Congress.

“(3) Any omitted information shall be supplied to the appropriate congressional committees in a classified annex and preserved in the administrative record for judicial review.”.

SEC. 5. CONFORMING LIMITS ON ENTRY SUSPENSION AND VISA REVOCATION.¶

(a) Entry suspension.¶

Section 212(f) of the Immigration and Nationality Act (8 U.S.C. § 1182(f)) is amended by adding at the end the following: “The authority under this subsection may not be exercised against an alien if covered adjudicative activity, as defined in section 203(d)(5) of the International Emergency Economic Powers Act, is a substantial basis for the suspension or restriction unless an Act of Congress specifically authorizes the entry sanction within the meaning of that section.”.

(b) Visa revocation.¶

Section 221(i) of the Immigration and Nationality Act (8 U.S.C. § 1201(i)) is amended by adding at the end the following: “A visa or other documentation may not be revoked under this subsection if covered adjudicative activity, as defined in section 203(d)(5) of the International Emergency Economic Powers Act, is a substantial basis for the revocation unless an Act of Congress specifically authorizes the visa sanction within the meaning of that section.”.

(c) Independent grounds preserved.¶

Nothing in this section prevents an entry restriction, inadmissibility determination, or visa revocation based on a ground that is independent of covered adjudicative activity and is supported by the same evidentiary record without regard to the alien’s relationship to a court, tribunal, or proceeding.

SEC. 6. JUDICIAL REVIEW.¶

(a) Cause of action and waiver.¶

Notwithstanding any other provision of law limiting judicial review of an entry restriction or visa action, a person whose property or interests in property are blocked, whose transaction or service is prohibited, whose entry is suspended or restricted, or whose visa or other documentation is revoked in alleged violation of an amendment made by this Act may bring a civil action against the United States and the responsible officers in the United States District Court for the District of Columbia. The United States waives sovereign immunity for declaratory and equitable relief under this section.

(b) Review standards.¶

The court shall—

(1) decide questions of statutory authority and statutory interpretation de novo;

(2) determine whether an individualized factual finding is supported by substantial evidence in the administrative record considered as a whole;

(3) require the Government to lodge the complete administrative record not later than 14 days after service, subject to section 203(c) of the International Emergency Economic Powers Act and any protective order entered by the court; and

(4) set aside an action that exceeds statutory authority, lacks the required direct and substantial nexus, treats covered adjudicative activity as a substantial basis without specific authorization, or is unsupported by substantial evidence.

(c) Expedition.¶

An action under this section shall receive expedited consideration under section 1657 of title 28, United States Code. The court may establish accelerated briefing, record-production, and hearing schedules consistent with due process and protection of classified information.

(d) Relief.¶

The court may issue appropriate declaratory and equitable relief, including vacatur of a designation, entry restriction, or visa restriction; release of property from blocking subject to any unrelated lawful restraint; reconsideration of documentation consistent with this Act; and an order directing a responsible officer to perform a nondiscretionary duty. This Act does not authorize money damages.

(e) Appeal.¶

An appeal from a final judgment or otherwise appealable order under this section lies in the United States Court of Appeals for the District of Columbia Circuit under otherwise applicable law. The filing of an appeal does not automatically stay relief.

SEC. 7. EXISTING ACTIONS AND TRANSITION.¶

(a) Review.¶

Not later than 60 days after enactment, the President shall review each existing property, transaction, entry, or visa restriction for which covered adjudicative activity is a substantial basis and shall determine whether—

(1) an Act of Congress supplies the specific authorization required by this Act; or

(2) the restriction rests on independently sanctionable conduct within the meaning of section 203(d)(2)(B) of the International Emergency Economic Powers Act, as added by this Act.

(b) Termination of unsupported restrictions.¶

At the end of the 60-day period, a covered restriction lacking the basis described in subsection (a) shall cease to have effect. The responsible agency shall promptly—

(1) remove the affected person or entity from any list maintained solely under the unsupported authority;

(2) release blocked property subject to any unrelated lawful restraint;

(3) withdraw or conform any regulation, directive, license, guidance, or prohibition implementing the unsupported restriction; and

(4) provide notice to affected persons and regulated parties.

(c) Pending enforcement.¶

No civil or criminal penalty may be imposed after the transition period for conduct that would have been lawful but for a restriction terminated under subsection (b). This subsection does not disturb a final judgment based on independently unlawful conduct or create a claim for money damages.

SEC. 8. RULES OF CONSTRUCTION.¶

Nothing in this Act shall be construed to—

(1) require or authorize the United States to become a party to the Rome Statute, recognize the jurisdiction of the International Criminal Court or another tribunal, cooperate with or provide support to a tribunal, surrender or extradite a person, appropriate funds, or take a position on any investigation, prosecution, defense, judgment, or appeal;

(2) alter the American Servicemembers’ Protection Act of 2002, including 22 U.S.C. §§ 7423 and 7433;

(3) limit sanctions, entry restrictions, visa action, prosecution, or other consequences specifically authorized by an Act of Congress or based on independently sanctionable conduct under otherwise applicable law;

(4) create immunity from criminal, civil, professional, or institutional accountability imposed by a body possessing lawful jurisdiction; or

(5) address any authority the President possesses independently under the Constitution; this Act limits only authority delegated by statute.

SEC. 9. IMPLEMENTATION.¶

(a) Regulations and guidance.¶

Not later than 60 days after enactment, the Secretary of the Treasury, the Secretary of State, and the Attorney General shall issue regulations or guidance necessary to implement this Act.

(b) Existing appropriations.¶

This Act shall be implemented using amounts otherwise available for sanctions administration, visa administration, litigation, and court operations. No new agency, office, tribunal, or judgeship is established by this Act.

SEC. 10. SEVERABILITY.¶

If any provision of this Act or an amendment made by this Act, or the application of that provision or amendment to any person or circumstance, is held invalid, the remainder of this Act and the application of its provisions and amendments to other persons or circumstances shall not be affected.

Budgetary Impact Statement¶

Preliminary classification: Low administrative and litigation impact. The draft adds transition review, individualized explanations, record production, and expedited judicial review within existing sanctions, visa, Justice Department, and court functions. It establishes no new program-delivery obligation or adjudicative institution and directs implementation from otherwise available appropriations. A reliable dollar estimate requires OFAC, State Department, DOJ, and Administrative Office workload data and an internal implementation review.

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

Drafting Notes¶

The draft amends the substantive scope of delegated authority. It does not replace EMERG-001's general framework for congressional approval, termination, and renewal of emergencies.
The “specific authorization” rule permits Congress to enact the same sanctions policy. It does not treat the failure of H.R. 23 or any other bill as a legal prohibition.
The further internal review should test the subsection placements, INA cross-references, review standards, classified-record procedure, transition treatment, and whether further conforming amendments are needed in 31 C.F.R. part 528 or related statutory notes.