Congressional Oversight of Presidential Sanctions Authority


The President has statutory authority to institute economic sanctions under the International Emergency Economic Powers Act (IEEPA), the National Emergencies Act (NEA), and the Trading with the Enemy Act (TWEA), among others. These statutes constitute legal delegations of certain Congressional commerce powers to the President. Over time, Congress has amended this delegation to provide itself with greater oversight authority over Presidential use of the statutes. Today, the three statutes have meaningful oversight checks in place; however, due to the President’s recent mass instatement of economic sanctions against Russia, some have argued for the enhancement of those oversight mechanisms. This post will argue that enhancement is not necessary by tracing the three statutes’ development and applying them to the current U.S. economic sanctions regime against Russia for its deadly war in Ukraine. 

Legal Background

Presidential authority to issue sanctions derives from the Constitution. Article I gives Congress the power to regulate commerce with foreign nations. Congress, in turn, can choose to delegate some of that power to the President. Delegations of congressional authority are constitutional so long as Congress provides through a legislative act an “intelligible principle” governing the exercise of the delegated authority. Congress passed TWEA, NEA, and IEEPA with intelligible principles based in purpose, cooperation, and oversight in mind. Additionally, Article II of the Constitution grants the President various powers related to conducting foreign affairs. For this reason, the President is also known as the U.S.’s Chief Diplomat. 

During World War I in 1917, Congress passed TWEA to provide the President with the authority to regulate economic transactions with the U.S.’s enemies during wartime. Inherent in this authority was the understanding that the President should be enabled to make decisions quickly and relatively independently. In 1933, TWEA was amended to give the President this same authority after declaring a national emergency, even in peacetime. This greatly broadened the President’s authority, allowing him to use it to regulate internal matters. TWEA originally provided very few Congressional oversight mechanisms, which became a problem in the 1960s and 1970s. 

To resolve the lack of oversight issue, and in response to a loss of trust in the Executive branch during the Truman and Nixon administrations, Congress established a Special Committee on the Termination of the National Emergency in 1973. The Special Committee was tasked with analyzing Presidential power delegated by Congress and found that since TWEA’s enactment in 1917, four national emergencies subject to TWEA were still in effect in 1973. The Special Committee noted that under these various statutory delegations, the President had “virtually dictatorial power.” Per the Special Committee’s findings and recommendations, Congress subsequently passed NEA in 1976. 

New oversight mechanisms inserted into NEA included: (1) The President must immediately notify Congress when he declares a national emergency; (2) Congress may terminate a national emergency through a joint resolution, which would come in the form of a bill that the President would have to sign; (3) Every six months after the enactment of a national emergency, Congress must meet to determine whether a joint resolution for termination is necessary; and (4) In the ninety days prior to the end of the six-month period, the President must notify Congress if he wishes to continue the national emergency. These mechanisms made the process more transparent by forcing the President to provide constant public justification for the declaration and continuation of a national emergency. 

In addition to NEA, Congress wanted to grant the President peacetime sanctioning powers similar to what he had under TWEA, but with greater restrictions on use. The result of that was IEEPA, passed in 1977. Although it is a statute independent from NEA, it incorporates parts of NEA by reference. IEEPA enables the President to impose economic sanctions on those who threaten the security of the United States. The President may impose sanctions under the condition that he declares a national emergency “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” IEEPA is distinct from TWEA and NEA in that the conditions that allow the President to declare a national emergency are very broad and open to interpretation. IEEPA is the most widely cited statute to enact economic sanctions today. 

IEEPA contains oversight mechanisms in addition to those in NEA: (1) The President must consult with Congress “in every possible instance” before the enactment of a national emergency; (2) Immediately after declaring a national emergency, the President must submit a letter to Congress explaining why he is acting under IEEPA and not under a different statute; and (3) The President must report to Congress on actions taken under the national emergency every six months. 

U.S. Sanctions Regime Against Russia

On March 6, 2014, President Barack Obama issued Executive Order (E.O.) 13660, Blocking Property of Certain Persons Contributing to the Situation in Ukraine, declaring a national emergency with respect to Russia’s illegal annexation of Ukrainian Crimea, and Russia’s other crimes in Ukraine. President Obama cited NEA and IEEPA as underlying legal authorities for the E.O., which was continued and expanded in scope several times thereafter. On February 21, 2022, President Joseph Biden issued E.O. 14065, Blocking Property of Certain Persons and Prohibiting Certain Transactions With Respect to Continued Russian Efforts To Undermine the Sovereignty and Territorial Integrity of Ukraine, continuing this national emergency under the same authorities and expanding its scope in response to Russia’s escalation in Ukraine. President Biden has issued several additional E.O.s continuing this national emergency into its eighth year. 

The Treasury Department’s Office of Foreign Assets Control (OFAC) is primarily responsible for administering economic sanctions under IEEPA. OFAC has sanctioned individuals and entities connected to the Russian government, severely restricting Russia’s banking sector and directly targeting corrupt oligarchs, and worked with U.S. and international partners to block approximately $300 billion of Russian assets. President Biden has fully cooperated with NEA and IEEPA’s oversight requirements, and Congress has not voiced protest at the administration’s use of these authorities or questioned their legal standing in doing so. In fact, throughout this process, Congress has only approved of the President’s use of these authorities and requested Executive guidance on how to aid in the President in enacting further sanctions. Surely, the drafters of the statutes are best able to identify when their delegations are being abused. 


The oversight mechanisms added to these statutes over time are substantive and meaningful. As previously noted, Article I of the Constitution grants Congress the power to regulate commerce with foreign nations, and Article II grants the President various powers related to conducting foreign affairs. The national emergencies the President may declare under these statutes impact and are impacted by foreign relations, even in peacetime declarations in which the President lends support to other countries experiencing strife. The very nature of these emergencies walks the line between Congressional commerce authority and Presidential foreign relations authority. While it is appropriate for Congress to include checks and balances in its legislation, it would be a betrayal of Constitutional intent to entirely deprive the President of discretion in such matters. It would also be a betrayal of Congressional intent. In the wise words of former OMB Director Thomas Bertram Lance: If it ain’t broke, don’t fix it.