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Comment by tptacek | Hacker News Reader

It doesn't matter what the executive order says. It has to invoke laws passed by Congress that provide the President with the authority to do anything. In this case, that law is the IEEPA. Read 50 U.S.C. 1702. He is limited to foreign transactions.

Executive orders are part of the federal rulemaking process. Rulemaking fills in the blanks left deliberately by Congress. Whether or not the President can use a national emergency to interfere with domestic financial transactions is not a blank Congress appears to have left in the IEEPA.

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It does invoke laws passed by Congress, one which specifically grants powers to the President:

50 U.S. Code § 1702 - Presidential Authorities [0]:

(1) At the times and to the extent specified in section 1701 of this title, the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise—

(B) investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States;

[0] https://www.law.cornell.edu/uscode/text/50/1702

Yes, and 50 USC 1702 is limited to foreign transactions and actors. You can't have your assets frozen under IEEPA merely for publishing POODLE. You have to write POODLE on behalf of China for this to matter to you.

Citation? Because that's not what the EO says:

to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, any activity described in subsections (a)(i) or (a)(ii)(A)

According to the EO, you only need to "provide technological support." And what does that entail? Whatever the Secretary of Treasury and AG decide it does.

Once again: the EO can only do what the IEEPA allows it to do. It does not matter what the EO says: if it conflicts with (or, in this case, is simply vague about) something in the IEEPA, it's the IEEPA that controls. Look at your own citation (50 USC 1702 is part of IEEPA); it's right there in the text.

This has come up before in US law --- executive orders w/r/t IEEPA --- before, by the way.

(I didn't downvote you and don't think anything you wrote deserves a downvote, for what it's worth).

That sounds very good, except for four ominous words in the article: "declares a national emergency". If I understand correctly (and I could well be wrong), in a national emergency, the president can (temporarily, theoretically) assume powers that neither Congress nor the Constitution gives him. Lincoln did this, briefly, during the Civil War.

The article doesn't give any more detail on the "national emergency". But I worry that it could be a "get out of jail free" card for the president to do more than Congress authorized in the IEEPA.

Does anyone know enough to shed some light here?

The whole concept of the IEEPA is to define the scope of powers the President has when he declares a national emergency.

The history of the IEEPA was that before it was passed in the 1970s, Congress felt like there were not enough controls on the President's emergency powers. So we're discussing a delegation of power designed for exactly the circumstance you're talking about.

The concern that the President could claim extralegal powers in an "emergency" is legitimate, but you can't reasonably point to a case where he's working within the narrow guidelines established by Congress specifically to avoid that outcome as evidence that that's happening.

Got it, thanks.

We've been in a national emergency since September 14, 2001. http://www.msnbc.com/all/obama-quietly-extends-post-911-stat...

I'm not sure if that was extended in 2014 but after some googling I also found that we have multiple ongoing national emergencies http://www.usatoday.com/story/news/politics/2014/10/22/presi...

The NEA means national emergencies aren't a simple binary state. Instead, the President invokes "emergencies" on an as-needed basis to access specific powers delegated to him by Congress, which can shut him down with a vote (and, of course, can repeal the grants of power altogether).

So it's not as if the President can say "oh noez hackers national emergency!", suspend habeas, and imprison Michal Zalewski†. Instead: Congress gave the President the authority to recognize arbitrary foreign powers as "threats" and, pursuant to the declaration of a "national emergency", to interfere with their financial transactions. That's what Obama has done here, presumably with China as the subtext.

In the wake of KindHearts, if these powers are executed against American citizens or organizations, they can be challenged and overturned on 4th Amendment grounds. (Note the powers we're talking about are, again, only meaningful in the context of foreign transactions, or assets whose beneficiaries are foreign threat actors).

† I'm not saying you said this.

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