Presidential Power to Regulate Domestic Litigation Involving Iranian Assets

By its term s the International E m ergency Econom ic Pow ers A ct (IE E P A ) gives the 

President broad authority to regulate the exercise o f all rights and privileges “ with 

respect to ” foreign property, including their exercise in a judicial context. T he legislative history o f the IE E P A confirm s that C ongress intended the President to have 

discretionary pow er to regulate court proceedings involving claims to foreign property, 

as well as the transfer o f o r creation o f interests in such property in a nonjudicial 

context.

T h e authority delegated by C ongress to the President in the IE E P A to deal w ith an 

international em ergency should be read as broadly as the statutory text and the 

C onstitution will perm it, and no limitations on it should be implied.

T h e P resident’s pow er under the IE E P A to prevent the prosecution or adjudication of 

claim s against Iran in the federal cou rts extends to any claim asserting an interest in 

property in w hich Iran has an interest, though it is unclear w hether this w ould include 

a naked tort claim against Iran w hich did not otherw ise involve the assertion o f an 

interest in property.

June 25, 1980

MEMORANDUM OPINION FOR TH E ATTORNEY G ENERAL

This memorandun responds to two questions you have asked concerning the President’s power under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq. (Supp. I 1977), to 

take action affecting pending litigation in the federal courts between 

U.S. nationals and the Republic of Iran. The two questions are the 

following: (1) Does IEEPA empower the President to order the federal 

courts to stay these pending cases? (2) Short of taking direct action 

with respect to the courts, may the President direct the litigants themselves to take no further action with respect to these cases?

As you know, under the authority conferred by IEEPA, the President has already prohibited the unauthorized transfer of Iranian government property subject to U.S. jurisdiction. Moreover, the regulations 

implementing the President’s order provide expressly that the general 

prohibition against transfer of Iranian property will extend to legal 

proceedings. The regulations prevent the transfer of Iranian property or 

the creation of interests in Iranian property through the operation of 

civil process. They do this in two ways. First, as a matter of substantive 

property law, they provide that during the life of the blocking order no 

interest can be created in Iranian property through the operation of

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civil process (through the entry of judgment, for example). See 31

C.F.R. §§ 535.203, 535.310. Second, as a matter of procedure, they 

prohibit the filing, issuance, or entry of judicial process in some cases,1 

and they invoke the civil and criminal penalties prescribed in IEEPA 

for any violation of this apparent proscription. See § 535.701.

Significantly, these regulations contain a special authorization that 

exempts the prejudgment elements of most domestic civil litigation 

from the procedural prohibition to which we have just referred. See

§ 535.304. For purposes of the regulations, the effect of this authorization is to permit litigation to go forward even where it might otherwise 

involve acts prohibited by the regulations—i.e., acts undertaken with 

the purpose or intent of creating interests in Iranian property. See

§ 535.310.2 The exemption does not, however, authorize final judicial 

action or process of the kind that ordinarily creates interests in property (entry of judgment, etc.); nor does it authorize any judicial proceeding or any part of any judicial proceeding that is “based on” an 

economic or financial transaction that was in violation of the blocking 

order. See § 535.504(b).

Your inquiry, in essence, is (1) whether the existing regulations are 

lawful to the extent that they already prohibit litigation involving 

Iranian property and (2) whether they can be amended to create a legal 

bar to further litigation during the life of the blocking order, to the 

extent that they presently permit litigation to go forward under the 

general authorization we have just described. Our conclusions are

(1) that the regulations are lawful to the extent that they now prohibit 

litigation involving Iranian property, (2) that they could be amended to 

prohibit what they now permit, and (3) that the amendment could take 

either of two forms: it could set forth a rule to be applied by the 

federal courts restricting their jurisdiction to proceed with the adjudication of claims with respect to Iranian property during the life of the 

blocking order, or it could impose a rule prohibiting claimants from 

proceeding further with the prosecution of these claims. The reasons 

for our conclusions are set forth below.

’ S i? §§ 535.201, 535.310. T he procedural prohibition is cast in term s o f a prohibition against the 

transfer o f Iranian governm ent property, see § 535.201; but the term “transfer” is defined so broadly 

that it covers any “ act” the “ purpose, intent, o r effect o f w hich” is to create any “ interest” in Iranian 

property, directly o r indirectly. T he regulations catalogue the kinds of acts that m ay fall w ithin the 

prohibition, and in that connection they refer expressly -to the filing, issuance, o r en try o f judgm ents o r 

o ther judicial process. See § 535.310. A ccordingly, w e interpret the general prohibition against “ transfer” o f Iranian p roperty as a prohibition against filing, issuance, o r entry o f any judicial process w here 

the purpose, intent, o r effect o f the act is to create an interest in Iranian property. W hether the general 

prohibition could be interpreted in its present form to prohibit litigants from filing o r prosecuting 

claims against Iranian property, w e cannot say.

*This “ authorization” does not p urp o rt to authorize litigation, process, o r acts w ith respect to 

Iranian property that are prohibited by o ther statutes o r laws. See, e.g., 28 U.S.C. §§ 1609, 1611. T hese 

provisions o f the Foreign Sovereign Im m unities A ct (F S IA ) preclude prejudgm ent attachm ent o f the 

property o f a foreign sovereign unless the purpose o f the attachm ent is nor to obtain jurisdiction and 

the foreign sovereign has explicitly w aived im m unity from attachm ent prior to judgm ent. T h e IE E P A 

regulations have not been interpreted as o verriding FSIA .

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I.

The relevant statutory language is found in § 203(a)(1)(B) of IEEPA. 

See 50 U.S.C. § 1702(a)(1)(B). Under that subsection the President may, 

upon a declaration of national emergency, “investigate, 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.” This language was lifted without alteration from § 5(b) of the 

Trading with the Enemy Act. See 50 U.S.C. App. § 5(b)(1)(B). It has a 

long statutory history.

It is evident that the core of the President’s power under IEEPA is 

his power to block or regulate commercial transactions in which foreign nationals have an interest. But the words themselves indicate 

rather clearly that Congress intended to confer on the President the 

power to regulate things other than the mere transfer of foreign property or the creation of interests in foreign property. He may, for 

example, prohibit or regulate the “exercise of any right, power or 

privilege” with respect to foreign property; and because the language 

of the subsection is disjunctive in character, this power is one that he 

may exercise in addition to his power to regulate, for example, the 

creation of interests in foreign property, or the use of foreign property, 

or the transfer of title or possession. Congress has determined that in 

time of emergency the exercise of rights or privileges with respect to 

foreign property may create dangers or difficulties that cannot be met 

by a simple prohibition against transfer or use, and Congress has given 

the President power to deal with those dangers.3

Does IEEPA give the President power to regulate judicial proceedings? IEEPA does not refer expressly to judicial proceedings, but its 

language is very broad. Of the “rights” and “privileges” that can be 

exercised “with respect to” foreign property, none is more important 

than the privilege of asserting a legal claim with respect to foreign 

property in court—the privilege of demanding and receiving an adjudication of property rights that carries the force of law. If, during an 

emergency, the President concludes that such a demand or such an

3T he language o f IE E P A indicates that the P resident's pow er under the statute is not plenary. 

IE E P A expressly denies him pow er to regulate m ere “ personal com m unications’* not involving a 

transfer o f “anything o f value.” 50 U.S.C. § 1702(b)( I). W e know o f no judicial decision that construes 

this language, but on its face it imposes a lim itation on the P resident's authority to regulate transactions that do not involve an actual transfer o f p roperty having value. T he relevant legislative history is 

not illum inating. See, e.g., S. Rep. No. 466, 95th C ong., 1st Sess. 5 (1977). W e do not construe this 

language as affecting any pow er that the President m ight o therw ise have under IE E P A to regulate or 

prohibit the exercise o f rights and privileges w ith respect to p roperty through the assertion o f formal 

claim s in court. In o ur view , the prosecution o f a civil claim is not a m ere “ personal com m unication" 

in the sense intended by the statute.

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adjudication may create a danger related to the emergency that cannot 

adequately be met by a simple prohibition against the transfer of the 

property in question, we think that IEEPA gives him power to deal 

with that danger. If the words mean what they say, the power to 

regulate or prohibit the prosecution or adjudication of court claims 

with respect to foreign property is surely within the ambit of the 

President’s larger power to regulate the exercise of rights and privileges 

“with respect to” foreign property in the first instance.4 Moreover, in 

the context of the present Iranian crisis, this argument carries force. 

The President may well conclude that ongoing litigation involving 

claims to Iranian property will weaken his hand in dealing with the 

crisis and that the litigation may create difficulties that cannot be 

prevented through the simple expedient of prohibiting new entries on 

the judgment docket. As the litigation progresses, as motions and defenses are allowed or dismissed, as evidence is developed and heard, the 

present uncertainty regarding rights and liabilities with respect to Iranian property subject to U.S. jurisdiction will diminish. Yet uncertainty 

can be valuable in international negotiation. If the President decides 

that uncertainty should be preserved, he may decide that the litigation 

should come to a halt.

Our task is to determine whether the textual argument is decisive. It 

is a difficult task. To accept the argument—to read the language as 

broadly as it might be read—is to accept the proposition that Congress 

has delegated to the President extraordinary authority to suspend for 

the time being the operation of a co-equal branch of government in a 

certain class of cases. We do not doubt that Congress itself has power 

to do this either by barring the prosecution of these claims during the 

period of emergency or by restricting temporarily the power of the 

courts to decide them. But it is another matter entirely to contend and 

conclude that this slender statutory text confers such power upon the 

President. Putting IEEPA to one side, we can think of no instance in 

which Congress has delegated to the President or any other executive 

dfficer authority to make discretionary judgments that can affect the 

jurisdiction of the courts or the rights of litigants in precisely this way.

Our caution notwithstanding, two considerations lead us to conclude 

that the President’s express authority under IEEPA to regulate or 

prohibit the exercise of rights or privileges with respect to foreign 

property should not be subjected as a matter of interpretation to an 

implied limitation that would prevent the President from regulating the

4T he textual argum ent is strengthened by the fact that IE E P A expressly preserves to som e extent 

the pow er that the President enjoyed under § 5(b) o f the T rading w ith the Enem y A ct to create 

“definitions, not inconsistent w ith the purposes'* o f the statute, for “any and all term s used** in the 

statute. U nder IE E P A the President is expressly given pow er to issue regulations, “ including regulations prescribing definitions," necessary for the exercise o f the “authorities" granted by the statute. See

50 U.S.C. § 1704. T he predecessor language w as construed by the Suprem e C ourt as requiring that the 

President's em ergency pow er “ be given generous scope to accom plish its purpose.” Propper v. Clark,

337 U.S. 472, 481 (1949); see 42 O p. A tt’y G en. 363,366 (1968).

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exercise of rights and privileges with respect to foreign property in 

court. Those considerations are the following:

First, when Congress enacted IEEPA, it was well aware of the long 

and creative history of the predecessor statute, the Trading with the 

Enemy Act. That statute had been used repeatedly for new and important purposes, wherever and whenever its broad and unqualified language would permit new action to be taken.5 Moreover, when Congress reexamined that history and fashioned IEEPA, it had before it an 

administrative interpretation that bore upon the very issue that concerns us here—the President’s power to regulate judicial proceedings. 

The Cuban Assets Control Regulations, for example, which had been in 

place since the early 1960’s, contained provisions that purported to 

prohibit some kinds of judicial proceedings. See 31 C.F.R. 

§§ 515.201(b)(1), 515.310, 515.504(c), 515.504(d). Congress chose to preserve without alteration the statutory language upon which those regulations had been based. Although the relevant legislative history discloses no active consideration of the question of judicial proceedings 

per se, Congress was well aware of the precedents.6 In the legislative 

actions surrounding the enactment of IEEPA, we find no evidence of 

an intention to reverse this administrative interpretation or to restrict 

the President’s authority on this point.

The second consideration is jurisprudential in nature. The Supreme 

Court has consistently recognized that in the field of foreign affairs 

there are compelling reasons for vesting generous discretionary power 

in the President. He is the “sole organ of the federal government in the 

field of international relations;” and, with respect to the question of 

delegated power, “[it] is quite apparent that if, in the maintenance of 

our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success of our aims achieved, congressional 

legislation which is to be made effective through negotiation and inquiry within the international field must often accord the President a 

degree of discretion and freedom from statutory restriction which 

would not be admissible were domestic affairs alone involved.” United

States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

This oft-quoted language was adopted by the Court in a case very 

much like the present one. The question was whether the President 

could lawfully take action under a broad delegation from Congress to 

impose and preserve a rule of law (a prohibition against the sale of 

arms) upon which a pending judicial proceeding (the proceeding 

below) had been founded. The question was treated as one of constitu­

* See Emergency Powers Statutes, S. Rep. No. 549, 93d C ong., 1st Sess. 184-91 (1973).

6T he H ouse com m ittee that considered IE E P A com piled an extensive docum entary history for use 

in connection w ith its hearings w hich included /these regulations. See Trading with the Enemy;

Legislative and Executive Documents Concerning Regulation o f International Transactions in Time o f

Declared National Emergency, Subcom m . on International T rad e and C om m erce o f the H ouse Com m , 

on International Relations, 94th C ong., 2d Sess. (Com m . Print 1976).

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tional dimension under the delegation doctrine, but we think that the 

Court’s observations about the necessary relation between legislative 

and executive power in the field of foreign affairs are directly relevant 

to the question of statutory interpretation in the first instance. If Congress delegates power broadly to the President to deal with an international emergency, there is no prudential reason to read the delegation 

more narrowly than the words and the Constitution will permit. On the 

contrary, there are reasons to read the delegation broadly. Congressional legislation must often accord the President “discretion and freedom from statutory restriction” to deal with foreign affairs—a “discretion and freedom” that would be inadmissible were domestic affairs 

alone involved.

We think that this principle should be followed in the interpretation 

of IEEPA. In point of fact, under the predecessor statute the courts 

consistently recognized the unusual breadth of the power that these 

few, plain words delegated to the President. The courts refused to 

recognize implied limitations. See, e.g., Smith v. Witherow, 102 F.2d 638 

(3d Cir. 1939); Ruffino v. United States, 114 F.2d 696 (9th Cir. 1940); 

Pike v. United States, 340 F.2d 487 (9th Cir. 1965); Sordino v. Federal

Reserve Bank o f New York, 361 F.2d 106 (2d Cir. 1966). Accordingly, 

although we have not found a case on point either under the old statute 

or the new, we are not inclined to recognize implied limitations here. 

We are of opinion that the President’s power to regulate or prohibit the 

exercise of rights, powers, or privileges with respect to foreign property, must be read to include a power to regulate or prohibit the 

exercise of rights, powers, or privileges through the prosecution or 

adjudication of claims with respect to foreign property in court—a 

power that he may exercise in addition to his power to prevent the 

transfer of, or the creation of interests in, foreign property.

II.

Precisely what kinds of claims are a proper subject for presidential 

regulation under IEEPA? Under the statute, they must be claims exercising a right, power, or privilege “with respect to . . . property” in 

which Iran or an Iranian national has an “interest.” The key words are 

“property” and “interest.” The presence of “property” or an “interest” 

in property triggers the power to act. In the absence of “property” or 

an “interest” in property, the statute confers no power. We are prepared to read this language broadly, but in the end the International 

Emergency Economic Powers Act does not confer plenary power 

upon the President to regulate all things foreign.

In accordance with that principle, we think that the President’s 

power to prevent the prosecution or adjudication of claims against Iran 

in the federal courts extends to any claim asserting an interest in or 

under an account or other specific property in which Iran has an

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interest. Moreover, it seems to us that the assertion of a claim against 

Iran, whatever its legal basis, will be tantamount to the assertion of a 

claim “with respect to” Iranian property whenever (1) the underlying 

obligation is secured by Iranian property under contract or by law, or

(2) the viability of the claim in court depends upon the assertion of an 

interest in Iranian property (as in the case of a claim asserted pursuant 

to a jurisdictional attachment).7 It might even be possible to read the 

statute broadly to permit the regulation of claims of debt asserted 

without reference to any extraneous property interest. Instruments of 

debt (bonds, notes, etc.) are the “property” of the claimant, and they 

are also property in which the obligor (Iran) has an “interest” in a 

general sense. Finally, if the language of the statute can be given a 

broad construction, nonetheless we think it cannot be read as a general 

grant of authority to control every conceivable instance of domestic 

litigation with Iran. For example, we think it unclear that the assertion 

or adjudication of a naked tort claim against Iran could itself be considered an exercise of a right, power, or privilege with respect to “property” in which Iran has an “interest;” and we doubt that the proceeding 

in which the claim is asserted could itself be regarded, without more, as 

a transaction “involving” property within the meaning of the statute. 

The President would of course have power to prevent foreign property 

from being transferred to satisfy the underlying claim, to satisfy any 

judgment that might be rendered in the case, and to prevent the entry 

of any judgment from creating an interest in property as a matter of 

law. But if the President exercised that power and the claim itself 

involved no actual assertion of rights or privileges with respect to 

property, in our view it would be difficult to find in the statute a basis 

for further presidential action.

III.

We wish to emphasize, again, that our interpretation of the statute is 

based not upon any judicial decision discussing or deciding the question 

at issue, but upon what we believe to be a reasonable reading of the 

statutory language in light of the relevant historical and jurisprudential 

considerations. The decisive consideration, in our view, is the one that 

we have already mentioned: Congress has given the President power to 

do more than prevent the use or transfer of foreign property during the 

pendency of a national emergency. Congress has contemplated that the 

mere exercise of rights, powers, or privileges with respect to foreign 

property may create dangers that cannot be met by a prohibition

7 See note 2 supra.

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against transfer or use; and Congress has given the President power to 

deal with those dangers.

L a r r y A . H a m m o n d

Acting Assistant Attorney General

Office o f Legal Counsel

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