Over the first 100 days and beyond, the Trump Administration has deployed national security authorities in novel ways. Perhaps most notably, President Trump has asserted authority under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. '1701 et seq., to declare the trade deficit a national emergency and impose substantial tariffs on a wide array of US trading partners.1 Moreover, he has directed the Secretary of State to designate certain international drug cartels as Specially Designated Global Terrorists (SDGTs) under IEEPA and as Foreign Terrorist Organizations (FTOs) under the Immigration and Nationality Act.
The Administration has also reportedly considered relying on a combination of authorities, potentially to include IEEPA and other national security authorities, to target the domestic and overseas activities of US-based nonprofits. Doing so could stretch these authorities even further than the Trump Administration has done to date.
IEEPA authorities are broad but not limitless. While these designation regimes have been construed broadly to allow the Executive Branch significant flexibility in emergencies, the authorities carry important statutory and procedural constraints. As US companies make plans to mitigate risk and evaluate litigation options around the expanding reliance on these authorities, they should also take note of these limitations. Below, we discuss how courts have approached such limitations historically and what those constraints likely mean moving forward.
1.Requirements for National Emergencies Under IEEPA
Under IEEPA, presidents can declare national emergencies to address "unusual and extraordinary threat[s], which ha[ve their] source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." 50 U.S.C. ' 1701(a). While the text of the statute implies some limitation on that authority, in practice, neither Congress nor the courts have generally questioned presidential determinations of a national emergency under the law.
Historically, the authority has been used to declare national emergencies and impose sanctions with respect to challenges such as Iran's weapons of mass destruction program,2 malicious cyber activities and Russian aggression in Ukraine. And, early in his second term, President Trump designated certain international cartels as SDGTs, declaring a national emergency at the southern border and invoking IEEPA authority to combat "a campaign of violence and terror throughout the Western Hemisphere" that has "flooded the United States with deadly drugs, violent criminals, and vicious gangs."3
While IEEPA has empowered executive action in a range of contexts, Congress actually enacted IEEPA to rein in presidential power, which Congress believed had expanded under the Executive Branch's expansive reliance on the Trading with the Enemy Act of 1917. Congress's purposeful limitation of the President's powers to declare national emergencies only for "unusual and extraordinary threats" was originally thought to supply a meaningful constraint on presidential action. However, in the nearly half-century since IEEPA's enactment, Congress and the courts have broadly deferred to the Executive Branch to determine what constitutes a national emergency, and Congress in particular has rarely sought to intervene against perceived presidential overreach. Legislative measures are especially unlikely where the president's party holds majorities in both chambers'for example, a bipartisan measure to terminate the national emergency underlying certain recent tariffs deadlocked in the Senate in late April.
Courts also generally have deferred to the Executive Branch on what constitutes a national emergency under IEEPA. Multiple courts have found it to be non-justiciable under the political question doctrine. For example, in reviewing President Reagan's 1985 declaration of a national emergency against Nicaragua, a court determined that it lacked the resources and expertise to determine whether the country posed a sufficient threat to trigger IEEPA and that it could not "resolve such questions without making its own policy judgments about national security and foreign policy, judgments best left to the political branches of the federal government."4 Similarly, though at times relying more on their textual construction of IEEPA itself, rather than the question of justiciability, courts have declined invitations by plaintiffs to rule substantively on whether "an emergency declared by the President was not a 'real emergency'" on the grounds that "[courts] cannot second-guess the President's determination," since IEEPA "clearly grants the President discretion to make that determination."5
The Executive Branch itself, in practice, has used the statutory scheme in ways that strained Congress' original intent.6 For example, IEEPA emergencies generally have been neither "rare" nor "brief." The average IEEPA "emergency" lasts over nine years, and the longest'the national emergency related to Iran'has lasted over 40 years and continues to this day. More than half of the 69 emergencies citing IEEPA remain in effect.7
Although challenging the Executive Branch's declaration of a particular national emergency under IEEPA is likely to face hurdles, companies considering challenges to emergency declarations should take into account several considerations: whether a given executive order presents a bona fide emergency; if an emergency or designation is instead based on constitutionally protected activity; and whether that activity actually arises in whole or in substantial part outside...
