Presidential Powers Relating to the Situation in Iran

[The follow ing m em orandum w as p repared in the hours im m ediately follow ing the

seizure o f the U nited States em bassy in T ehran. Its conclusions are set forth in its

second p aragraph ]

November 7, 1979

M EM ORAND UM O PIN IO N FO R T H E A TTO RN EY G E N E R A L

This memorandum addresses, on an urgent basis, possible responses 

to the situation in Iran.

O ur conclusions are as follows:

1) The President may block Iranian assets upon the declaration of a 

national emergency under the International Emergency Econom ic 

Powers Act (IEEPA ). An oil boycott would be such an emergency. 

This Act also provides authority to halt transactions including imports 

and exports.

2) W ithout declaration of an emergency, the President may prohibit 

or curtail the export of goods in situations threatening American national security or stated foreign policy goals under the Export Administration Act o f 1979.

3) The President may restrict the movement of Iranian diplomatic 

and consular personnel and may take non-forcible reprisals.

4) Except in time of w ar the United States cannot intern Iranian 

nationals.

5) The President has the constitutional power to send troops to aid 

American citizens abroad. This pow er is subject to the consultation and 

reporting provisions of the W ar Powers Resolution.

I. Authority to Impose Economic Controls

A. The International Emergency Economic Powers Act

The President has wide-ranging power to regulate direct foreign 

investment under the International Em ergency Economic Powers Act, 

Pub. L. No. 95-223, title II, 50 U.S.C. §§ 1701-1706 (Supp. I 1977), 

enacted in 1977.

The Act authorizes the President, after declaration of a national 

emergency, to block all assets in the United States of Iran and Iranian

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nationals and to prohibit or regulate all importation or exportation of 

property in which Iran or Iranians have an interest.

The IE E P A provides in relevant part:

Sec. 202. (a) Any authority granted to the President by 

section 203 may be exercised to deal with any unusual and 

extraordinary threat, which has its source in whole or 

substantial part outside the United States, to the national 

security, foreign policy, or economy of the United States, 

if the President declares a national emergency with respect to such threat.

(b) The authorities granted to the President by section 

203 may only be exercised to deal with an unusual and 

extraordinary threat with respect to which a national 

emergency has been declared for purposes of this title and 

may not be exercised for any other purpose. Any exercise 

o f such authorities to deal with any new threat shall be 

based on a new declaration of national emergency which 

must be with respect to such threat.

Sec. 203. (a)(1) A t the times and to the extent specified 

in section 202, the President may, under such regulations 

as he may prescribe, by means of instructions, licenses, or 

otherw ise—

(A) investigate, regulate, or prohibit—

(i) any transactions in foreign exchange,

(ii) transfers o f credit or payments between, by, through,

or to any banking institution, to the extent that such

transfers or payments involve any interest o f any foreign

country or a national thereof,

(iii) the importing or exporting o f currency or securities;

and

(B) 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.

50 U.S.C. §§ 1701, 1702(a)(1). (Emphasis added.) 1 It is clear that once 

the President declares a national emergency under the IEEPA , he

’ T he statute denies the President authority to regulate communications and most humanitarian 

activities. Id. § 1702(b).

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assumes plenary control over all foreign assets subject to the jurisdiction of the United States, and he may regulate or prohibit movements 

of foreign or domestic currency or credit in and out of the country.

In the IEEPA , Congress (perhaps intentionally) left the definition of 

“national emergency” ostentatiously vague.2 This may reflect either the 

difficulty of defining all possible situations which could constitute a 

national emergency or the recognition that what constitutes a national 

emergency is essentially a political question depending upon the felt 

necessities of a particular political context.

However, the legislative history indicates that an oil embargo could 

institute a national emergency.

During the markup of the bill in the Committee on International 

Relations, the following exchange between Representatives Solarz and 

Bingham, the latter being Chairman of the Subcommittee that considered the legislation, took place:

Mr. Solarz. For argument sake, let us say there was another oil embargo. W ould that constitute potentially the 

kind of nonwar national emergency?

Mr. Bingham. I think quite clearly it would.

Mr. Solarz. If it would, and the President declared a 

national emergency pursuant to such an embargo, could 

you explain in lay language what precisely he would be 

able to do under his powers? When it talks about regulating the controlling [sic] foreign assets, does that mean he 

could freeze the assets of the boycott [sic] of the country 

that established the embargo?

Mr. Bingham. Correct, freeze but not seize. There is a 

difference.

Mr. Solarz. So if he had money he could tie it up and say 

in effect when you lift the embargo, we will lift the 

freeze?

Mr. Bingham. That is correct. He can regulate exports in 

a manner not regulated by the Export Administration 

Act.

2 See H.R. Rep. No. 459, 95th Cong., 1st Sess. 10 (1977):

[G]iven the breadth o f the authorities and their availability at the President's discretion 

upon a declaration of national em ergency, their exercise should be subject to various 

substantive restrictions. The main one stems from a recognition that em ergencies are 

by their nature rare and brief, and are not to be equated with normal, ongoing 

problems. A national em ergency should be declared and em ergency authorities em ­

ployed only with respect to a specific set o f circum stances which constitute a real 

emergency, and for no other purpose. T he em ergency should be terminated in a timely 

manner when the factual state of em ergency is over and not continued in effect for use 

in other circumstances. A state o f national em ergency should not be a normal state of 

affairs.

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Mr. Solarz. W hich means he could in effect establish an 

embargo on exports to that country?

Mr. Bingham. Correct.

Revision o f Trading With the Enemy Act, M arkup Before the House

Comm, on International Relations, 95th Cong., 1st Sess. 4 (1977).

Declaration of a national emergency under the IE E PA implicates 

provisions of the National Emergencies Act, Pub. L. No. 94-412, 50 

U.S.C. §§ 1601-51. See H.R. Rept. No. 459 at 14 (1977). Section 204(d), 

50 U.S.C. § 1703(d), provides that the consulting and reporting obligations placed on the President “are supplemental to those contained in 

title IV of the National Emergencies A ct.” And the National Emergencies Act states in no uncertain terms that “[n]o law enacted after the 

date of enactment of this Act shall supersede this title [concerning 

declaration of a national emergency and congressional power to terminate] unless it does so in specific terms, referring to this title, and 

declaring that the new law supersedes the provisions of this title.” 50 

U.S.C. § 1641. Thus, should the President declare a national emergency 

under the IE E PA arising out of an energy crisis, he must

(a) transmit the declaration and a report justifying it to Congress and publish the declaration in the Federal Register (50 

U.S.C. § 1703);

(b) keep and transmit to Congress records of all executive 

orders, proclamations, rules, and regulations (id., § 1641);

(c) transmit to Congress every six months a report on expenditures directly attributable to the exercise of emergency authorities (id.);

(d) report to Congress every six months actions taken in the 

exercise of the emergency authorities (id., § 1703(c)).

Furtherm ore, the legislative veto provision of the National Em ergencies Act, § 202(a)(1), applies to the President’s declaration of a national 

emergency under the IEEPA ; and § 207(b) of the IE E PA provides 

further that Congress may terminate the President’s exercise of authority saved by IE E P A ’s grandfather clause, § 207(a)(1). President Carter 

noted his “serious concern” over the unconstitutionality of § 207(b) at 

the time he signed the IEEPA . Pub. Papers of Jimmy Carter 2187 

(Dec. 28, 1977). We believe Congress may not constitutionally terminate the exercise of these authorities by passage of a concurrent resolution not submitted to the President pursuant to Article I, § 7 of the 

Constitution.

While the Act has not been used, the constitutionality of its predecessors has been upheld. E.g., Nielsen v. Secretary o f Treasury, 424 F.2d 833 

(D.C. Cir. 1970); Pike v. United States, 340 F.2d 487 (9th Cir. 1965); 

Sordino v. Fed. Res. Bank, 361 F.2d 106 (2d Cir.), cert, denied 385 U.S. 

898 (1966).

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The new Export Administration Act of 1979 (Pub. L. No. 96-72, to 

be codified at 50 U.S.C. App. § 2401 et seq.) contains two separate 

grants of power to the President to prohibit or curtail the export of 

goods and technology that are subject to the jurisdiction of the United 

States. Both of these provisions state that the authority is to be exercised by the Secretary of Commerce by means of export licenses. The 

first provision, § 5(a), is meant to implement the A ct’s policy to restrict 

exports that “would make a significant contribution to the military 

potential of any other country . . . which would prove detrimental to 

the national security of the United States.” (§ 3(2)(A)). The second 

provision is meant to implement the A ct’s policies to restrict exports 

“to the extent necessary to further significantly the foreign policy of 

the United States or to fulfill its declared international obligations,” 

(§ 6(a)) a phrase that is apparently limited by an accompanying crossreference to the A ct’s policies of securing removal of foreign restrictions on our supplies in certain circumstances, and of discouraging the 

provision of aid or sanctuary to international terrorists.

Either or both of these grants of pow er may prove responsive to the 

Iranian situation. The Act sets some substantive restrictions on presidential discretion that are not outlined above (e.g., he may not limit 

exports of medicines). It also includes complicated provisions for the 

Secretary to follow in issuing or denying licenses.

II. Diplomatic and Consular Persons and Property

A. Rights o f Iranian Diplomats

The rights of diplomats are codified in the Vienna Convention on 

Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502. 

The United States and Iran are both parties to the Convention.

A rticle 39 of the Vienna Convention on Diplomatic Relations, 23 

U.S.T. 3227, provides that privileges and immunities continue even in 

case of armed conflict. The United States opposed this provision because it would preclude custody in wartime, 7 M. Whiteman, Digest of 

Int’l Law 441, but did not enter a reservation to it. The State D epartment Legal Adviser expressed the view during hearings on the convention that Article 26, which permits regulation of the travel of diplomats 

for reasons of national security, would permit custody. Id. at 442. Thus, 

it might be possible to place their diplomats in a situation akin to house 

arrest under Article 26. However, they would be free to leave the 

country. Article 44.

This conclusion is reinforced by the fact that it appears that Iran has 

been guilty of massive breach of its obligation under the Convention to 

protect United States diplomats and diplomatic property. A material 

breach of a multilateral treaty by one of the parties entitles a party

B. Export Controls

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specially affected by the breach to invoke it as a ground for suspending 

the operation of the treaty in whole or in part in the relations between 

itself and the defaulting state. Vienna Convention on the Law of Treaties, Art. 60, Senate Exec. L., 92d Cong., 1st Sess. (1971).

B. Diplomatic Property

The Diplomatic Convention further provides that the host state must 

respect and protect the premises of the mission together with its property and archives even if diplomatic relations are broken off. On the 

other hand a violation of a treaty obligation, as of any other obligation, 

may give rise to a right “to take non-forcible reprisals.” Commentary on

Vienna Convention on Law o f Treaties, [1966]. 2 Y.B. Int’l L. Comm’n 

169, 253-54. We make no recommendation as to what an appropriate 

reprisal may be.

C. Consular Offices

The Treaty of Amity, Econom ic Relations, and Consular Rights, 

Aug. 15, 1955, United States-Iran, 8 U.S.T. 899, T.I.A.S. No. 3853, 

provides for protection of consular officers (Art. XIII) and for the 

normal privileges and immunities. In addition, both the United States 

and Iran are parties to the subsequent Vienna Convention on Consular 

Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820. The Consular 

Convention includes provisions for protection of consular posts comparable to those in the Diplomatic Convention (Arts. 26, 27, 34 and our 

observations would similarly apply.)

III. Iranian Nationals

The President has statutory authority to intern or expel enemy aliens. 

H owever, this power is available only in time of w ar or invasion, 50 

U.S.C. § 21, and thus cannot be invoked at present. The Supreme Court 

has held this provision constitutional. Ludecke v. Watkins, 335 U.S. 160 

(1948).

The Supreme Court has also upheld the constitutionality of curfews 

and exclusion orders directed solely at persons of Japanese ancestry 

(including American citizens) during W orld W ar II, Korematsu v. 

United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 

U.S. 81 (1943). The court invalidated detention orders as beyond the 

statutory authority o f the W ar Relocation A uthority without reaching 

the constitutional issues. E x Parte Endo, 323 U.S. 283 (1944).

These orders w ere authorized by a statute which was repealed in 

1976. Section 501(e) of P.L. No. 94-412, the National Emergencies Act. 

No comparable statute exists today.

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IV. Use of Troops

A. Constitutional Power

It is well established that the President has the constitutional power 

as Chief Executive and Commander-in-Chief to protect the lives and 

property of Americans abroad. This understanding is reflected in judicial decisions, e.g., Durand v. Hollins, 8 Fed. Cas. I l l (No. 4186) 

(C.C.S.D.N.Y. 1860) quoted in The Constitution of the United States: 

Analysis and Interpretation 562-63 (1973), and recurring historic practice which goes back to the time of Jefferson. E.g., Borchard, The 

Diplomatic Protection of Citizens Abroad 448-53 (1915). This power 

has been used conspicuously in recent years in a variety of situations. 

These include: landing troops in the Dominican Republic to protect the 

lives of citizens believed to be threatened by rebels (1965), the Danang 

sealift during the collapse of Vietnam defense (1975), the evacuation of 

Phnom Penh (Cambodia, 1975), the evacuation of Saigon (1975), the 

Mayaguez incident (1975), evacuation of civilians during the civil war in 

Lebanon (1976), and the dispatch of forces to aid American victims in 

Guyana (1978).

B. The War Powers Resolution

The War Powers Resolution, 50 U.S.C. § 1541 et seq., does not limit 

the President’s power to act in this instance. Its consultation and reporting requirements are, however, both triggered by situations which involve the introduction of armed forces into hostilities, or into situations 

where imminent involvement in hostilities is clearly indicated. See 50 

U.S.C. §§ 1542, 1543.3 In addition, reporting to Congress is also required by the Resolution when armed forces are sent to a foreign 

country equipped for combat, or when they are sent in numbers which 

substantially enlarge the forces equipped for combat already in a foreign nation. See 50 U.S.C. § 1543.

The Resolution includes in its statement of purposes and policy a list 

of situations in which the President is authorized to introduce the 

armed forces into hostilities or situations of imminent hostility. See 50 

U.S.C. § 1541(c). Protection of American citizens abroad is not there 

mentioned. However, we do not consider that the purpose and policy 

statement should be construed to constrain the exercise of the President’s constitutional power in this instance.

First, the Resolution’s policy statement is not a comprehensive or 

binding formulation of the President’s powers as Commander-in-Chief.

3 There have been, since the enactment of (he Resolution, four instances of protection and evacuation w here its provisons applied. See War Powers: A Test o f Compliance Relative to the Danang Sealift,

the Evacuation o f Phnom Penh, the Evacuation o f Saigon, arid the Mayaguez Incident, Hearings Before the

Subcommittee on International Security and Scientific Affairs o f the House Comm, on International

Relations, 94th Cong., 1st Sess. (1975).

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See H. Conf. Rep. 547 93d Cong., 1st Sess. 8 (1973) (stating that 

subsequent sections of the Resolution are not dependent on the policy 

statement). M oreover, Senator Javits, Senate Manager of the Conference Bill, when asked w hether the President has “authority to act 

unilaterally to rescue American nationals in danger abroad who might 

be found in the midst of rebellion or the threat of w ar,” replied:

I think the normal practice which has grown up on that is 

that it does not involve such a utilization of the forces of 

the United States as to represent a use of forces, appreciably, in hostilities so as to constitute an exercise of the war 

power or to constitute a commitment of the Nation to 

war.

119 Cong. Rec. 33,558 (1973). In view of this “normal practice,” it 

would seem that the failure in the Resolution’s statement of purpose 

and policy to list the recognized Presidential power of protecting 

American citizens abroad is itself an indication that the list therein was 

not meant to be exhaustive.4

Finally, the Resolution itself disclaims any intent to alter the constitutional pow er of the President, such as has been discussed in this memorandum, see 50 U.S.C. § 1547(d)(1), and it probably could not.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

A See Franck, After the Fall: The New Procedural Framework fo r Congressional Control Over the War

Power, 71 Am. J. Int'l L. 605, 613, 626 (1977).