Judge, Jury, and Executioner: Why Private Parties Have Standing to Challenge an Executive Order That Prohibits ICTS Transactions with Foreign Adversaries
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American University Law Review Volume 69 Issue 6 Article 4 2020 Judge, Jury, and Executioner: Why Private Parties Have Standing to Challenge an Executive Order That Prohibits ICTS Transactions with Foreign Adversaries Ari K. Bental American University Washington College of Law Follow this and additional works at: https://digitalcommons.wcl.american.edu/aulr Part of the Law and Politics Commons, and the President/Executive Department Commons Recommended Citation Bental, Ari K. (2020) "Judge, Jury, and Executioner: Why Private Parties Have Standing to Challenge an Executive Order That Prohibits ICTS Transactions with Foreign Adversaries," American University Law Review: Vol. 69 : Iss. 6 , Article 4. Available at: https://digitalcommons.wcl.american.edu/aulr/vol69/iss6/4 This Comment is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Judge, Jury, and Executioner: Why Private Parties Have Standing to Challenge an Executive Order That Prohibits ICTS Transactions with Foreign Adversaries Abstract On May 15, 2019, President Donald Trump, invoking his constitutional executive and statutory emergency powers, signed Executive Order 13,873, which prohibits U.S. persons from conducting information and communications technology and services (ICTS) transactions with foreign adversaries. Though the executive branch has refrained from publicly identifying countries or entities as foreign adversaries under the Executive Order, observers agree that the Executive Order’s main targets are China and telecommunications companies, namely Huawei, that threaten American national security and competitiveness in the race to provide the lion’s share of critical infrastructure to support the world’s growing 5G network. Executive Order 13,873 raises several concerns—both broad and specifically elatedr to the Trump Administration. In general, courts have struggled to clearly define the legal status of executive orders or the courts’ ability to review executive orders. The quasi-legislative nature of executive orders creates tension with the separation of powers principle and contributes to courts’ challenges in addressing concerns that they raise. The Trump Administration has continued a concerning trend of pursuing policy objectives through executive orders rather than through Congress in the current era of legislative gridlock. This Administration has also weaponized trade policy to accomplish national security objectives and implement a protectionist strategy that threatens the U.S.’s position as the world’s leading economy. This Comment argues that affected parties have standing to challenge the government’s enforcement of this Executive Order against them in Article III courts in defense of their due process rights, despite language in the Order that may suggest it is exempt from judicial review. By analogizing the new interagency committee tasked with implementing Executive Order 13,873 to the Committee on Foreign Investment in the United States, this Comment uses the precedent the D.C. Circuit established in Ralls Corp. v. CFIUS to demonstrate that hypothetical U.S. person plaintiffs, who may be involved in ICTS transactions with foreign adversaries, have a due process right to notice of, access to, and the opportunity to rebut the unclassified information the government uses to justify enforcement action against them under Executive Order 13,873. This Comment concludes by synthesizing the arguments of important stakeholders who have submitted public comments on the proposed rule for enforcing the Executive Order and providing policy recommendations to improve the efficacy and fairness of the implementing regulations. This comment is available in American University Law Review: https://digitalcommons.wcl.american.edu/aulr/vol69/ iss6/4 COMMENTS JUDGE, JURY, AND EXECUTIONER: WHY PRIVATE PARTIES HAVE STANDING TO CHALLENGE AN EXECUTIVE ORDER THAT PROHIBITS ICTS TRANSACTIONS WITH FOREIGN ADVERSARIES ARI K. BENTAL* ABSTRACT On May 15, 2019, President Donald Trump, invoking his constitutional executive and statutory emergency powers, signed Executive Order 13,873, which prohibits U.S. persons from conducting information and communications technology and services (ICTS) transactions with foreign adversaries. Though the executive branch has refrained from publicly identifying countries or entities as foreign adversaries under the Executive Order, observers agree that the Executive Order’s main targets are China and telecommunications companies, namely Huawei, that threaten American national security and competitiveness in the race to provide the lion’s share of critical infrastructure to support the world’s growing 5G network. Executive Order 13,873 raises several concerns—both broad and specifically related to the Trump Administration. In general, courts have struggled to clearly * Note & Comment Editor, American University Law Review, Volume 70; J.D. Candidate, May 2021, American University Washington College of Law; B.A., International Affairs, 2016, The George Washington University. I would like to thank Erin Downey, whose friendship and guidance were essential to the publication of this Comment. Additionally, I am grateful to Maddie Dolan for providing extensive, invaluable feedback that sharpened the piece during the editorial process. I would also like to thank all of the other Law Review editors and staff who worked on this Comment. Finally, I would like to thank my mother, Tuffy Kriegel, for her boundless love and encouragement. 1883 1884 AMERICAN UNIVERSITY LAW REVIEW [Vol. 69:1883 define the legal status of executive orders or the courts’ ability to review executive orders. The quasi-legislative nature of executive orders creates tension with the separation of powers principle and contributes to courts’ challenges in addressing concerns that they raise. The Trump Administration has continued a concerning trend of pursuing policy objectives through executive orders rather than through Congress in the current era of legislative gridlock. This Administration has also weaponized trade policy to accomplish national security objectives and implement a protectionist strategy that threatens the U.S.’s position as the world’s leading economy. This Comment argues that affected parties have standing to challenge the government’s enforcement of this Executive Order against them in Article III courts in defense of their due process rights, despite language in the Order that may suggest it is exempt from judicial review. By analogizing the new interagency committee tasked with implementing Executive Order 13,873 to the Committee on Foreign Investment in the United States, this Comment uses the precedent the D.C. Circuit established in Ralls Corp. v. CFIUS to demonstrate that hypothetical U.S. person plaintiffs, who may be involved in ICTS transactions with foreign adversaries, have a due process right to notice of, access to, and the opportunity to rebut the unclassified information the government uses to justify enforcement action against them under Executive Order 13,873. This Comment concludes by synthesizing the arguments of important stakeholders who have submitted public comments on the proposed rule for enforcing the Executive Order and providing policy recommendations to improve the efficacy and fairness of the implementing regulations. TABLE OF CONTENTS Introduction .............................................................................. 1885 I. Background .................................................................... 1890 A. The Balance of Power During National Emergencies............................................................. 1891 1. Separation of powers generally.......................... 1891 2. Emergency powers and statutes ......................... 1893 a. National Emergencies Act of 1976 (NEA) .. 1894 b. International Economic Emergency Powers Act of 1977 (IEEPA) ........................ 1895 B. The Legal Status of Executive Orders ..................... 1896 1. Statutory checks on executive action exercised under executive orders ...................... 1896 2. Challenging executive orders in court .............. 1899 2020] JUDGE, JURY, AND EXECUTIONER 1885 3. Executive Order 13,873 and the Trump Administration.................................................... 1902 C. Laws and Regulations at the Nexus of National Security and Trade .................................................. 1905 1. Export control .................................................... 1905 2. Committee on Foreign Investment in the United States (CFIUS) ....................................... 1906 3. Department of State ........................................... 1911 4. Department of the Treasury .............................. 1912 D. Standing and the Justiciability Doctrine ................. 1913 II. Analysis .......................................................................... 1917 A. The Separation of Powers Principle, APA, and Standing Doctrine All Support Entities’ Ability to Challenge Unfavorable Decisions of Executive Order 13,873’s Interagency Committee in Article III Courts on Due Process Grounds. .......... 1919 1. Injury-in-fact ....................................................... 1925 2. Causation