Will the Russia Summit Lead to a Battle of the Branches on Sanctions and Trade?

The meeting in Helsinki between the U.S. and Russian presidents has (as presumably everyone knows) sparked strong reactions in the United States, particularly in response to the U.S. President’s performance. Beyond the politics of the moment and its aftermath, the Helsinki meeting could have legal consequences, should Congress move to insert itself, beyond its standard law-making and oversight role, in sanctions and trade matters. And not just with respect to Russia.

There are a number of ways that Congress can play a greater role in sanctions and trade. Such Congressional involvement, if it materializes, would likely be designed to constrain the President, such as by restricting his ability to lift, not impose or modify sanctions through Executive action.

Congress Can Constrain the President’s Power to Modify, Rescind or Not Impose Sanctions

The 2017 Countering America’s Adversaries Through Sanctions Act (CAATSA), which codified Obama-era executive orders authorizing sanctions on Russia and thereby denied the President options to not impose or rescind sanctions authorized by his predecessor, provides one model of Congress-imposed limits on the President’s sanctions authority. (As noted here, the President raised Constitutional concerns about the limiting mechanisms of CAATSA in his signing statement, suggesting that he may challenge or veto future similar legislation).

Congress Can Play a Role in the Sanctions Designation Process

Additionally, Congress may carve out for itself a role in making sanctions designations (i.e., identifying persons to whom sanctions should be applied). There are blueprints for this kind of Congressional participation in the sanctions designations process. For example, the Global Magnitsky Act confers on Congress the authority to identify and refer to the Executive Branch specific parties for potential sanctions action.

Congress Can  Mandate Sanctions in Specific Cases

Recently, and in response to the President’s actions to reverse the export ban on Chinese telecoms firm ZTE, the House and Senate inserted in their respective versions of the National Defense Authorization Act (NDAA) (now in conference committee) language barring ZTE from certain federal procurement (House version) or mandating the re-imposition of ZTE’s export ban (Senate version).

(MassPoint previously predicted that the NDAA will pass without the ZTE language. This remains our prediction as of today. However, concerns about the President’s Helsinki performance, following the Special Counsel’s indictment of 12 Russian nationals for election meddling, may prompt some Congressional Republicans to break with the White House on ZTE).

Talk of Congressional Action on Tariffs, Action Less Likely

As to tariffs, some Republican lawmakers have grown more vocal in the last week or so in their concerns about the escalating U.S.-China trade war and the adverse impacts of tariffs. Some of these legislators may move to curb the President’s authority on trade matters (as has been previously proposed by at least on Republican senator).

Greater Congressional Role on Sanctions or Trade Will Likely Go Beyond Russia

Time will tell if Congress members’ expressions of concern about foreign affairs and trade matters will translate into action. Reactions to events in Helsinki suggest that it will be known sooner rather than later if Congress will act, and, if so, how. For now, parties currently or potentially affected by U.S. sanctions should understand that, after the Russia Summit, Congressional activism on sanctions may be more likely, and not just with respect to Russia.

Congressional Role in Sanctions Could be Challenged 

While Congress’ more recent insertions of itself in sanctions and enforcement matters have gone unchallenged, there may be grounds for legal challenges. As noted above, the White House has raised concerns about CAATSA, apparently on the grounds that, inter alia, Congress has infringed the President’s Constitutional authority to conduct foreign affairs.

The ZTE amendments in pending versions of the NDAA could raise legal issues as to whether the Senate version of NDAA establishes a law enforcement role for Congress and/or whether the singling out of ZTE is problematic under the Constitution’s ex post facto law and Bill of Attainder provisions. Of course, whether and when any legal challenges will be made will be up to the Executive Branch and parties with standing to challenge Congressional involvement in sanctions and law enforcement matters on a case-by-case basis.

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For more information about the thinking behind this post or to learn about MassPoint’s related services, contact Hdeel Abdelhady at habdelhady@masspointpllc.com. To view MassPoint’s related publications, visit the publications page and blog.