Presidential Powers Relating to the Situation in Iran
[T h e fo llo w in g m em o ran d u m w as p re p a re d in the h o u rs im m ediately fo llo w in g th e
seizu re o f th e U n ited S tates em bassy in T e h ra n . Its c o n clu sio n s a re set fo rth in its
seco n d p a ra g ra p h ]
N ovem ber 7, 1979
M E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L
This m em orandum addresses, on an urgent basis, possible responses
to the situation in Iran.
O ur conclusions are as follows:
1) T he President may block Iranian assets upon the declaration o f a
national em ergency under the International Em ergency E conom ic
Pow ers A ct (IE E PA ). An oil boycott w ould be such an em ergency.
This A ct also provides authority to halt transactions including im ports
and exports.
2) W ithout declaration o f an em ergency, the President may prohibit
or curtail the export o f goods in situations threatening Am erican na
tional security or stated foreign policy goals under the E xport Adm inis
tration A ct o f 1979.
3) T he President may restrict the m ovem ent o f Iranian diplom atic
and consular personnel and m ay take non-forcible reprisals.
4) Except in time o f w ar the United States cannot intern Iranian
nationals.
5) T he President has the constitutional pow er to send troops to aid
Am erican citizens abroad. This pow er is subject to the consultation and
reporting provisions o f the W ar Pow ers Resolution.
I. Authority to Impose Economic Controls
A. The International Emergency Economic Powers A ct
T he President has wide-ranging pow er to regulate direct foreign
investment under the International E m ergency Econom ic Pow ers A ct,
Pub. L. No. 95-223, title II, 50 U.S.C. §§ 1701-1706 (Supp. I 1977),
enacted in 1977.
T he A ct authorizes the President, after declaration o f a national
em ergency, to block all assets in the United States o f Iran and Iranian
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nationals and to prohibit or regulate all im portation o r exportation of
property in w hich Iran o r Iranians have an interest.
T he IE E P A provides in relevant part:
Sec. 202. (a) A ny authority granted to the President by
section 203 may be exercised to deal w ith any unusual and
extraordinary threat, w hich has its source in whole or
substantial part outside the U nited States, to the national
security, foreign policy, o r econom y o f the United States,
if the President declares a national em ergency with re
spect to such threat.
(b) T he authorities granted to the President by section
203 may only be exercised to deal w ith an unusual and
extraordinary threat w ith respect to w hich a national
em ergency has been declared for purposes o f this title and
may not be exercised for any other purpose. A ny exercise
o f such authorities to deal w ith any new threat shall be
based on a new declaration o f national em ergency w hich
must be w ith 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 o f instructions, licenses, or
otherw ise—
(A) investigate, regulate, o r prohibit —
(i) any transactions in foreign exchange,
(ii) transfers o f credit or paym ents between, by, through,
or to any banking institution, to the extent that such
transfers or paym ents 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 exporta
tion of, or dealing in, or exercising any right, power, or
privilege with respect to, or transactions involving, any prop
erty in which any foreign country or a national thereof has
any interest;
by any person, o r w ith respect to any property, subject to
the jurisdiction o f the United States.
50 U.S.C. §§ 1701, 1702(a)(1). (Em phasis added.) 1 It is clear that once
the President declares a national em ergency under the IE E P A , he
’ T h e statute denies the President au th o rity to regulate com m unications and m ost hum anitarian
activities. Id. § 1702(b).
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assumes plenary control over all foreign assets subject to the jurisdic
tion of the United States, and he may regulate or prohibit m ovem ents
o f foreign or dom estic currency or credit in and out of the country.
In the IE E P A , Congress (perhaps intentionally) left the definition of
“national em ergency” ostentatiously vague.2 This may reflect either the
difficulty of defining all possible situations which could constitute a
national em ergency o r the recognition that w hat constitutes a national
em ergency is essentially a political question depending upon the felt
necessities o f a particular political context.
H ow ever, the legislative history indicates that an oil em bargo could
institute a national emergency.
D uring the markup o f the bill in the Com m ittee on International
Relations, the following exchange betw een Representatives Solarz and
Bingham, the latter being Chairm an o f the Subcom m ittee that consid
ered the legislation, took place:
Mr. Solarz. F or argum ent sake, let us say there was an
other oil embargo. W ould that constitute potentially the
kind o f nonw ar national emergency?
Mr. Bingham. I think quite clearly it would.
Mr. Solarz. If it would, and the President declared a
national em ergency pursuant to such an embargo, could
you explain in lay language w hat precisely he would be
able to do under his powers? W hen it talks about regulat
ing the controlling [sic] foreign assets, does that mean he
could freeze the assets o f the boycott [sic] o f the country
that established the embargo?
Mr. Bingham. C orrect, freeze but not seize. T here is a
difference.
Mr. Solarz. So if he had money he could tie it up and say
in effect w hen you lift the embargo, we will lift the
freeze?
Mr. Bingham. T hat is correct. He can regulate exports in
a m anner not regulated by the Export Adm inistration
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 o f national em ergency, th eir exercise should be subject to various
substantive restrictions. T h e main one stem s from a recognition that em ergencies are
by their nature rare and brief, and are not to be equated w ith norm al, ongoing
problems. A national em ergency should be declared and em ergency authorities em
ployed only w ith respect to a specific set o f circum stances w hich constitute a real
em ergency, and for no o th e r purpose. T h e em ergency should be term inated in a timely
m anner w hen the factual state o f em ergency is o v e r and not continued in effect for use
in o th e r circum stances. A state o f national em ergency should not be a norm al state of
affairs.
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Mr. Solarz. W hich means he could in effect establish an
em bargo on exports to that country?
Mr. Bingham. C orrect.
Revision o f Trading With the Enem y Act, M arkup Before the House
Comm, on International Relations, 95th Cong., 1st Sess. 4 (1977).
D eclaration o f a national em ergency under the IE E P A implicates
provisions o f the National Em ergencies A ct, 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 obliga
tions placed on the President “are supplem ental to those contained in
title IV o f the National Em ergencies A ct.” And the National Em ergen
cies A ct states in no uncertain term s that “ [n]o law enacted after the
date o f enactm ent o f this A ct shall supersede this title [concerning
declaration o f a national em ergency and congressional pow er to term i
nate] 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 em ergency
under the IE E P A arising out o f an energy crisis, he must
(a) transmit the declaration and a report justifying it to C on
gress and publish the declaration in the Federal Register (50
U.S.C. § 1703);
(b) keep and transm it to C ongress records o f all executive
orders, proclam ations, rules, and regulations (id., § 1641);
(c) transm it to C ongress every six m onths a report on expendi
tures directly attributable to the exercise o f em ergency authori
ties (id.);
(d) report to C ongress every six m onths actions taken in the
exercise o f the em ergency authorities (id., § 1703(c)).
F urtherm ore, the legislative veto provision o f the National E m ergen
cies A ct, § 202(a)(1), applies to the President’s declaration o f a national
em ergency under the IE E P A ; and § 207(b) o f the IE E P A provides
further that Congress may term inate the President’s exercise o f author
ity saved by IE E P A ’s grandfather clause, § 207(a)(1). President C arter
noted his “serious concern” over the unconstitutionality o f § 207(b) at
the time he signed the IE E P A . Pub. Papers o f Jim m y C arter 2187
(Dec. 28, 1977). W e believe C ongress may not constitutionally term i
nate the exercise o f these authorities by passage o f a concurrent resolu
tion not submitted to the President pursuant to A rticle I, § 7 o f the
Constitution.
W hile the A ct has not been used, the constitutionality o f its predeces
sors 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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B. Export Controls
T he new Export Adm inistration A ct o f 1979 (Pub. L. No. 96-72, to
be codified at 50 U.S.C. App. § 2401 et seq.) contains tw o separate
grants of pow er to the President to prohibit or curtail the export of
goods and technology that are subject to the jurisdiction o f the United
States. Both o f these provisions state that the authority is to be exer
cised by the Secretary o f Com m erce by means of export licenses. T he
first provision, § 5(a), is meant to implement the A c t’s policy to restrict
exports that “ would make a significant contribution to the military
potential o f any other country . . . which would prove detrim ental to
the national security o f the United States.” (§ 3(2)(A)). T he second
provision is meant to implement the A c t’s policies to restrict exports
“to the extent necessary to further significantly the foreign policy o f
the United States or to fulfill its declared international obligations,”
(§ 6(a)) a phrase that is apparently limited by an accom panying cross-
reference to the A c t’s policies o f securing removal of foreign restric
tions on our supplies in certain circum stances, and of discouraging the
provision o f aid or sanctuary to international terrorists.
E ither or both o f these grants o f pow er may prove responsive to the
Iranian situation. T he A ct sets some substantive restrictions on presi
dential discretion that are not outlined above (e.g., he may not limit
exports o f medicines). It also includes com plicated provisions for the
Secretary to follow in issuing or denying licenses.
II. Diplomatic and Consular Persons and Property
A. Rights o f Iranian Diplom ats
T he rights o f diplomats are codified in the Vienna C onvention on
Diplom atic 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 o f the Vienna C onvention on D iplom atic Relations, 23
U.S.T. 3227, provides that privileges and immunities continue even in
case o f armed conflict. T he United States opposed this provision be
cause it would preclude custody in wartime, 7 M. W hiteman, Digest of
Int’l Law 441, but did not enter a reservation to it. T he State D epart
ment Legal A dviser expressed the view during hearings on the conven
tion that A rticle 26, which permits regulation o f the travel o f diplomats
for reasons o f national security, w ould permit custody. Id. at 442. Thus,
it might be possible to place their diplomats in a situation akin to house
arrest under A rticle 26. H ow ever, they w ould be free to leave the
country. A rticle 44.
This conclusion is reinforced by the fact that it appears that Iran has
been guilty o f massive breach o f its obligation under the C onvention to
protect United States diplomats and diplomatic property. A material
breach of a multilateral treaty by one o f the parties entitles a party
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specially affected by the breach to invoke it as a ground for suspending
the operation o f the treaty in w hole or in part in the relations between
itself and the defaulting state. Vienna C onvention on the Law o f T rea
ties, A rt. 60, Senate Exec. L., 92d Cong., 1st Sess. (1971).
B. D iplom atic Property
T he Diplom atic C onvention further provides that the host state must
respect and protect the premises of the mission together with its prop
erty and archives even if diplom atic relations are broken off. On the
other hand a violation o f a treaty obligation, as o f any other obligation,
may give rise to a right “ to take non-forcible reprisals.” Com m entary on
Vienna Convention on L aw o f Treaties, [1966]. 2 Y.B. Int’l L. Com m ’n
169, 253-54. W e make no recom m endation as to w hat an appropriate
reprisal may be.
C. Consular Offices
T he T reaty o f Am ity, Econom ic Relations, and C onsular Rights,
Aug. 15, 1955, United States-Iran, 8 U.S.T. 899, T.I.A .S. No. 3853,
provides for protection o f consular officers (Art. X III) and for the
normal privileges and immunities. In addition, both the United States
and Iran are parties to the subsequent Vienna C onvention on Consular
Relations, A pr. 24, 1963, 21 U.S.T. 77, T.I.A .S. No. 6820. T he Consular
C onvention includes provisions for protection o f consular posts com pa
rable to those in the D iplom atic C onvention (Arts. 26, 27, 34 and our
observations w ould similarly apply.)
III. Iranian Nationals
T he President has statutory authority to intern or expel enemy aliens.
H ow ever, this pow er is available only in time o f w ar or invasion, 50
U.S.C. § 21, and thus cannot be invoked at present. T he Suprem e C ourt
has held this provision constitutional. Ludecke v. Watkins, 335 U.S. 160
(1948).
T he Suprem e C ourt has also upheld the constitutionality o f curfews
and exclusion orders directed solely at persons o f Japanese ancestry
(including A m erican 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). T he court invalidated detention orders as beyond the
statutory authority o f the W ar Relocation A uthority w ithout reaching
the constitutional issues. E x Parte Endo, 323 U.S. 283 (1944).
T hese orders w ere authorized by a statute w hich was repealed in
1976. Section 501(e) o f P.L. No. 94-412, the National Em ergencies Act.
N o com parable statute exists today.
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IV. Use of Troops
A. Constitutional Power
It is well established that the President has the constitutional pow er
as C hief Executive and Com m ander-in-Chief to protect the lives and
property o f Am ericans abroad. This understanding is reflected in judi
cial decisions, e.g., D urand v. Hollins, 8 Fed. Cas. I l l (No. 4186)
(C.C.S.D.N.Y. 1860) quoted in T he C onstitution o f the United States:
Analysis and Interpretation 562-63 (1973), and recurring historic prac
tice which goes back to the time o f Jefferson. E.g., B orchard, The
Diplom atic Protection o f Citizens A broad 448-53 (1915). This pow er
has been used conspicuously in recent years in a variety o f situations.
These include: landing troops in the Dom inican Republic to protect the
lives of citizens believed to be threatened by rebels (1965), the D anang
sealift during the collapse o f Vietnam defense (1975), the evacuation of
Phnom Penh (Cambodia, 1975), the evacuation o f Saigon (1975), the
Mayaguez incident (1975), evacuation o f civilians during the civil w ar in
Lebanon (1976), and the dispatch o f forces to aid Am erican victims in
Guyana (1978).
B. The War Powers Resolution
T he W ar Pow ers Resolution, 50 U.S.C. § 1541 et seq., does not limit
the President’s pow er to act in this instance. Its consultation and report
ing requirem ents are, how ever, both triggered by situations w hich in
volve the introduction o f armed forces into hostilities, o r into situations
w here imminent involvem ent in hostilities is clearly indicated. See 50
U.S.C. §§ 1542, 1543.3 In addition, reporting to Congress is also re
quired by the Resolution when armed forces are sent to a foreign
country equipped for combat, or when they are sent in numbers w hich
substantially enlarge the forces equipped for com bat already in a for
eign nation. See 50 U.S.C. § 1543.
T he Resolution includes in its statem ent o f purposes and policy a list
o f situations in which the President is authorized to introduce the
armed forces into hostilities or situations o f imminent hostility. See 50
U.S.C. § 1541(c). Protection o f Am erican citizens abroad is not there
mentioned. H ow ever, we do not consider that the purpose and policy
statement should be construed to constrain the exercise o f the Presi
d ent’s constitutional pow er in this instance.
First, the Resolution’s policy statem ent is not a com prehensive or
binding formulation o f the President’s powers as Commander-in-Chief.
3 T here have been, since the enactm ent o f (he Resolution, four instances o f protection and evacu
ation 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 C ong., 1st Sess. (1975).
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See H. Conf. Rep. 547 93d Cong., 1st Sess. 8 (1973) (stating that
subsequent sections o f the Resolution are not dependent on the policy
statem ent). M oreover, Senator Javits, Senate M anager o f the C onfer
ence Bill, when asked w hether the President has “authority to act
unilaterally to rescue Am erican nationals in danger abroad who might
be found in the midst o f rebellion or the threat o f w ar,” replied:
I think the normal practice w hich has grow n up on that is
that it does not involve such a utilization o f the forces of
the United States as to represent a use o f forces, apprecia
bly, in hostilities so as to constitute an exercise o f the w ar
pow er or to constitute a com m itm ent o f the Nation to
war.
119 Cong. Rec. 33,558 (1973). In view o f this “normal practice,” it
would seem that the failure in the R esolution’s statem ent o f purpose
and policy to list the recognized Presidential pow er o f protecting
Am erican 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 constitu
tional pow er o f the President, such as has been discussed in this memo
randum, see 50 U.S.C. § 1547(d)(1), and it probably could not.
Jo hn M. H arm on
Assistant Attorney General
Office o f L egal Counsel
ASee F ran ck , A fter the Fall: The N ew Procedural Framework fo r Congressional Control Over the War
Power, 71 A m . J. Int'l L. 605, 613, 626 (1977).