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Analysis

Trump’s Latest Abuse of Emergency Powers Highlights a Dangerous Law in Need of Change

The president’s threat of sanctions against the International Criminal Court for investigating Americans for war crimes in Afghanistan shows just how badly Congress needs to reform the law.

June 24, 2020

After years of Trump admin­is­tra­tion threats against the Inter­na­tional Crim­inal Court, the pres­id­ent declared a national emer­gency this month so he could impose sanc­tions to intim­id­ate the court out of pursu­ing invest­ig­a­tions of Amer­ic­ans and nation­als of some other coun­tries. The move is a gross abuse of emer­gency powers, under­mines the core Amer­ican values of human rights and rule of law, and weak­ens our coun­try’s stand­ing inter­na­tion­ally by alien­at­ing us from our allies.

If there were a prize for actions that simul­tan­eously affront both domestic and inter­na­tional law, this exec­ut­ive order would certainly be a contender. But unfor­tu­nately, the law that Pres­id­ent Trump invoked, the Inter­na­tional Emer­gency Economic Powers Act (IEEPA), is so broad and subject to so few Congres­sional checks that guard­rails are scant. This egre­gious action by the pres­id­ent is a cry for reforms.

Congres­sional debates during consid­er­a­tion of the law, enacted in 1977, show that it was to be used only in “rare and brief” emer­gency circum­stances, not as a quick and easy way to score polit­ical points. However, it provides vast and flex­ible finan­cial powers, and for that reason it has become one of Trump’s favor­ite tools to threaten perceived enemies.

During a trade war with China, he threatened to order all U.S. compan­ies to leave China, and when ques­tioned on his power to do so tweeted “try look­ing at the Emer­gency Economic Powers Act of 1977. Case closed!" Last year, he threatened to use the law to impose escal­at­ing tariffs on goods coming from Mexico to force it to control the number of migrants travers­ing that coun­try to reach the U.S. border. And this year, he warned of sanc­tions against Iraq if it expelled U.S. troops follow­ing the assas­sin­a­tion of Iranian general Qasem Solei­mani.

Beyond mere threats, Trump has actu­ally declared national emer­gen­cies that invoke the law eight times.

Once unlocked, its powers are sweep­ing. It allows the freez­ing of all prop­erty belong­ing to those sanc­tioned that is held by “U.S. persons,” which includes citizens, resid­ents, and Amer­ican busi­nesses and organ­iz­a­tions. And it can prohibit all U.S. persons from having any finan­cial deal­ings with those who are sanc­tioned, with the possib­il­ity of steep crim­inal and civil penal­ties if they do so.

The ICC, estab­lished in 2002 and based in The Hague, is meant to try cases of indi­vidu­als such as Ali Kush­ayb, a Janja­weed mili­tia leader wanted for war crimes and crimes against human­ity in Darfur who was trans­ferred to the ICC to stand trial just this month. The United States is not one of the 123 members of the ICC, but it has been support­ive of some of its endeavors over the years. Trump’s order mostly serves as a ham-handed warn­ing to the ICC to try to dissuade invest­ig­a­tions regard­ing Amer­ica or its non-member allies or risk further consequences.

The Trump admin­is­tra­tion’s ire most imme­di­ately stems from inquir­ies into events that are connec­ted to the Afgh­anistan conflict, as well as actions in Palestine. The court’s prosec­utor is currently conduct­ing an invest­ig­a­tion that could result in cases against citizens of the United States or allies.

The Trump admin­is­tra­tion objects to any ICC claim to be able to exer­cise juris­dic­tion over Amer­ic­ans, or other non-party states. In his order, and in fulfill­ment of IEEP­A’s require­ments, Trump said the possible invest­ig­a­tion, arrest, deten­tion, or prosec­u­tion of U.S. or allied person­nel by the court consti­tutes an “unusual and extraordin­ary threat to the national secur­ity and foreign policy of the United States.”

Whatever one’s views of what the ICC’s reach should be, emer­gency powers are not the proper way to express them. There is no reas­on­able inter­pret­a­tion under which the ongo­ing oper­a­tions of a court which the United States has success­fully engaged with across multiple admin­is­tra­tions can be considered an emer­gency. At the same time, this aggress­ive action will only serve to dimin­ish the stand­ing of our coun­try as a leader of the rules-based inter­na­tional order that bene­fits us immensely.

Trump’s order does not sanc­tion specific people, such as ICC staff and support­ers, but it opens the door for the secret­ary of state to do so as long as they argu­ably fit within the broad categor­ies of delin­eated targets. These include foreign­ers deemed to “have directly engaged in any effort by the ICC to invest­ig­ate, arrest, detain, or prosec­ute any United States or allied person­nel without the consent of the United States” or the relev­ant ally. It also includes those who have “mater­i­ally assisted, sponsored, or provided finan­cial, mater­ial, or tech­no­lo­gical support for, or goods or services to or in support of” those activ­it­ies.

Under the National Emer­gen­cies Act, which governs the use of IEEPA, the only way for Congress to termin­ate the “emer­gency” is by muster­ing a veto-proof major­ity, an extremely high bar. A bill that would remedy that is await­ing a full vote before the Senate, but it largely excludes IEEPA from its ambit.

One vast improve­ment to the law would be to require congres­sional approval for any sanc­tions program within a certain amount of time, perhaps six months. This would sens­ibly flip the current dynamic: congres­sional inac­tion would termin­ate the use of extraordin­ary powers rather than permit­ting it.

IEEP­A’s powers are ones that the Consti­tu­tion gives to Congress, and that Congress deleg­ated to the pres­id­ent. It is past time for Congress to take those powers back.