Nowhere to Hide: Overbreadth and Other Constitutional Challenges Facing the Current Designation Regime

I. INTRODUCTION Modern American jurisprudence, though ostensibly based on common law, looks little like the idealized version of its ancestor prevalent in seventeenth-century England. Industrialization, globalization, and now digitalization have bred fifty volumes of the United States Code and countless tomes of regulation. In addition, the mixture of healthy political discourse, liberal pleading requirements, and low costs of entry into the judicial system have produced thousands of decisions applying the Constitution, common law, and statutes to a wide range of mundane and unusual activities. Of course, the above picture describes only the federal part of the legal environment. The addition of state and local counterparts creates a distinct impression that the majority of one's public activities trigger some official rule, either encouraging or reproving the behavior. Despite this trend towards broad regulation, jurists in the United States have taken care to keep some space clear. The freedoms allotted by the Constitution are too valuable to leave unguarded against the creep of administrative turf wars and Congressional pandering. These freedoms must be preserved, their borders vigilantly guarded against both the seemingly innocuous and the openly hostile kinds of encroachment. This paper will describe an area of the legal landscape where a combination of national security concerns and complex theory has overwhelmed the sentries and thrust into the citadel of a free and open society. Specifically, this piece will focus on the relationship between the executive power to block assets of designated organizations under the International Economic Emergency Powers Act (IEEPA)1, the Antiterrorism and Effective Death Penalty Act (AEDPA)2, and material support provisions criminalizing any transaction with an entity subject to such a sanction. The first step of this scheme - asset blocking - features low levels of culpability and limited judicial review. The second step material support provisions - shows a penchant for broad inferences, logical shortcuts, and harsh penalties. Together, these aspects of the designation regime impermissibly infringe on constitutionally protected freedoms of speech and association. They also violate the Fifth Amendment's requirements of due process and clarity. This piece is structured as follows. The remainder of the Introduction will set up some vignettes to provide context for the subsequent legal discussion. Part II will review the statutory and administrative foundations of the current regime. Part III will discuss its constitutional origins and some associated limitations. Part IV will review two contested modern applications of the regime: the designation process and the resulting ban on material support. Part V will articulate the First and Fifth Amendment defects in the aforementioned structure. Two examples should help the reader appreciate the power and problems of the designation regime. Both are fictions based on real events. Example 1 First, consider Adam, an American citizen of Armenian descent residing in Boston. Adam receives an invitation for a human rights fundraiser from the local cultural center. The event will feature a speaker, David, from the Persian-Armenian Christian Coalition (PACC), a group dedicated to ending the persecution of Armenian Christians in Iran. David, also an American citizen, heads the U.S. branch of the PACC, a Delaware corporation engaged in charitable activity, headquartered in Philadelphia. PACC-US legally sends money and medical supplies to their brethren in Armenia, who then forward the goods to Iran. Though no branch or member of the PACC has ever been charged with a crime in the United States, the Iranian government has outlawed the group. Moreover, Adam has heard from several relatives that PACC staged an attack on an Iranian Revolutionary Guard outpost in 2005, killing two soldiers. Adam decides to attend David's lecture, where he purchases a t-shirt proclaiming Armenian unity from a PACC stand for fifteen dollars. …