Thursday, August 24th, 2006

IEEPA’s Delegation of Authority to President Is Constitutional

United States v. Osameh Al Wahaidy, Docket No. 05-4770-cr (2d Cir. Aug. 24, 2006) (Leval, Jacobs, Rakoff): This case concerns the constitutionality of the International Emergency Economic Powers Act (“IEEPA”), which authorizes the President to regulate financial transactions with foreign countries (or nationals) in times of security crisis and prescribes penalties for violations of executive orders or regulations issued by the President. Defendant was convicted under IEEPA of violating two presidential orders (issued by Bush the First following Iraq’s invasion of Kuwait in 1990) prohibiting transfers of money to persons in Iraq (he transferred approximately $100,000 to persons in Iraq in 1999 and 2000).

Defendant argued that the charges against him must be dismissed because IEEPA unconstitutionally delegates Congress’s authority to define criminal offenses to the President. The district court disagreed, and the Circuit affirms.

The Circuit relied principally on Touby v. United States, 500 U.S. 160 (1991), in which the Supreme Court upheld a delegation of power to the Attorney General to expedite the designation of a substance as “controlled” by bypassing (for a limited time) several of the requirements for permanent scheduling. Op. 13. Touby explained that even assuming that “something more than an ‘intelligible principle’ is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions,” the challenged statute would pass muster under that heightened standard. Without deciding whether something more than an “intelligible principle” is needed to sustain a congressional delegation involving criminal sanctions, the Circuit found that “the IEEPA’s delegation is subject to constraints similar to those found sufficient in Touby.” Op. 14.

Moreover, there were factors here weighing in favor of constitutionality that were absent in Touby. “Specifically, the IEEPA relates to foreign affairs — an area in which the President has great discretion,” and “[a]dditionally, Congress has endorsed the President’s actions and enacted legislation codifying the sactions.” Op. 15. There is, therefore, “no question that ‘the will of Congress has been obeyed.'” Id.

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