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The IEEPA gives the president the authority to restrict any economic transactions with foreign entities if he declares a national emergency regarding the activi

by tssva 6y ago

The IEEPA gives the president the authority to restrict any economic transactions with foreign entities if he declares a national emergency regarding the activity. The judgement as to whether the national emergency is justified is granted to the president with almost no restrictions. The president must send a report to congress within 30 days justifying the declaration. Congress can then chose to over rule the declaration. A new report with justification for continuing the emergency must be sent to Congress at certain intervals and Congress can again choose to override the emergency. These are different from the powers given to the CFIUS under the Defense Protection Act. At first glance it would appear that Trump has authority under the IEEPA do take the actions he has. Tiktok is most likely going to base their legal action on challenging the constitutionality of the IEEPA. Tiktok's argument of violating due process alludes to this being the case.

three_seagrass 6y ago
The president does not have broad authority under IEEPA. Congress specifically limited presidential authority when passing the act, and TikTok is protected under IEEPA 50 U.S. Code § 1702(b): > The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly - (1) any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value; ... (3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. https://www.law.cornell.edu/uscode/text/50/1702 https://www.law.cornell.edu/uscode/text/50/1702
- R0b0t1 6y ago
  For #1, it seems the president could prohibit most app activity as it collects data until such a time they remove the data collection. For #3, TikTok the app is a content delivery platform, not the content itself. Since there is data collected and something of value, it seems that although parallels can be drawn between the content on TikTok and the list of explicitly allowed items, the whole of TikTok is something different than the items listed in #3. (And if those are the only exceptions the powers are quite broad.)
  - btown 6y ago
    It's also possible that #1 could be interpreted as having been intended to only protect a tight definition of "personal communications" as single-party-to-single-party, not broadcast communications or social media. #3 is actually an interesting one. Would it prevent the President from being able to stop a ship owned by a foreign national if it was carrying a single CD-ROM of informational materials? What if it was full of such CD-ROMs? What if part of a frozen bank account was going to be used to facilitate the transfer of information? Would not some hindrance of the free flow of information be an inevitable side effect of ANY action under IEEPA? Of course, one imagines it was not the intention of the drafters of the law to let a single CD-ROM neuter the entire presidential power. My non-lawyer understanding is that courts normally establish some kind of "balancing test" in these scenarios that can be used to draw a line in the sand. But from e.g. https://fas.org/sgp/crs/natsec/R45618.pdf https://fas.org/sgp/crs/natsec/R45618.pdf it's unclear whether there's any case law that specifically establishes the boundaries. Regardless, this will be a very interesting saga.
- gpm 6y ago
  > which does not involve a transfer of anything of value; Since the order only blocks transfers of value last I checked this exception does not seem on point at all.
- tssva 6y ago
  Given the very narrow focus of those limits I would consider the presidents power under the IEEPA extremely broad.

by tssva 6y ago

three_seagrass 6y ago

The president does not have broad authority under IEEPA. Congress specifically limited presidential authority when passing the act, and TikTok is protected under IEEPA 50 U.S. Code § 1702(b): > The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly - (1) any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value; ... (3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. https://www.law.cornell.edu/uscode/text/50/1702 https://www.law.cornell.edu/uscode/text/50/1702

R0b0t1 6y ago
For #1, it seems the president could prohibit most app activity as it collects data until such a time they remove the data collection. For #3, TikTok the app is a content delivery platform, not the content itself. Since there is data collected and something of value, it seems that although parallels can be drawn between the content on TikTok and the list of explicitly allowed items, the whole of TikTok is something different than the items listed in #3. (And if those are the only exceptions the powers are quite broad.)
- btown 6y ago
  It's also possible that #1 could be interpreted as having been intended to only protect a tight definition of "personal communications" as single-party-to-single-party, not broadcast communications or social media. #3 is actually an interesting one. Would it prevent the President from being able to stop a ship owned by a foreign national if it was carrying a single CD-ROM of informational materials? What if it was full of such CD-ROMs? What if part of a frozen bank account was going to be used to facilitate the transfer of information? Would not some hindrance of the free flow of information be an inevitable side effect of ANY action under IEEPA? Of course, one imagines it was not the intention of the drafters of the law to let a single CD-ROM neuter the entire presidential power. My non-lawyer understanding is that courts normally establish some kind of "balancing test" in these scenarios that can be used to draw a line in the sand. But from e.g. https://fas.org/sgp/crs/natsec/R45618.pdf https://fas.org/sgp/crs/natsec/R45618.pdf it's unclear whether there's any case law that specifically establishes the boundaries. Regardless, this will be a very interesting saga.
gpm 6y ago
> which does not involve a transfer of anything of value; Since the order only blocks transfers of value last I checked this exception does not seem on point at all.
tssva 6y ago
Given the very narrow focus of those limits I would consider the presidents power under the IEEPA extremely broad.