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Cybersecurity Research

IV. National Security Challenges to the U.S. Unilateral Economic Sanctions

Broad sanctions that gives extensive discretion to the President to implement may result in criminal convictions, as permitted under TWEA and IEEPA, have been challenged in courts on constitutional grounds—however, such cases rarely succeed.112 As the U.S. Supreme Court stated in Regan v. Wald, these are matters “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”113 IEEPA’s immunity from constitutional attack is striking because of its especial open-ended terms.114The Act provides a broad authority to the President to implement sanctions without going to Congress.115 Challenges to IEEPA on First Amendment and other constitutional grounds has not been successful, although courts agreed that the Act provides “sweeping and unqualified” grants of power to the President.116 The courts have denied claims that IEEPA provides an unconstitutional grant of “essentially unbridled discretion to the Executive Branch”63 or that it is “unconstitutionally vague.”117 The same judicial argument applies to the other laws authoring sanctions that are challenged on different constitutional grounds.118 Since the probability of success of any such claims is low, the risks of non-compliance with sanctions are surprising high. The scope and applicability of the rules can be difficult to assess, and recent cases demonstrate the magnitude of the U.S. government’s reaction to violations.119

As mentioned above, economic sanctions can be aimed against nationstates or specific individuals and entities, and may include measures such as asset freezes, import tariffs, trade barriers, travel bans, and embargoes.120

111. Id.

112. Casey et al., supra note 102, at 33.

113. Regan v. Wald, 468 U.S. 222, 242 (1984).

114. Statutory Bases, supra note 78.

115. Id.

116. Dames & Moore v. Regan, 453 US 654, 671 (1981).

117. U.S. v. Vaghari, No. 08-693-01-02, 2009 WL 2245097, at 1 (E.D. Pa 2009).

118. Statutory Bases, supra note 78.

119. Id.

120. Lin, supra note 36, at 1401; see also *Jimmy Gurule, *The Demise of the U.N. Economic Sanctions Regime to Deprive Terrorists of Funding, 41 CASE W. RES. J. INT’L L. 19, 20-22, 28 (2009) (demonstrating the prevalence of economic sanctions post September 11, 2001).

OFAC has overseen many longstanding and recent financial sanctions as weapons in modern warfare against American enemies as diverse as the Iranian Revolutionary Guard, terrorist organizations, Mexican drug cartels, and foreign nation-states. 121 For instance, the U.S. and its allies imposed a series of economic sanctions against Russia and certain Russian citizens following Russia’s annexation of Crimea in 2014.122

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