While Washington is as empty as a turkey coop on Thanksgiving, the White House sent up to the abandoned halls of Congress its annual proclamation, under the International Emergency Economic Powers Act (“IEEPA”), declaring a continuation of the national emergency that is claimed to authorize the executive to extend unilaterally all the provisions of the now lapsed Export Administration Act (“EAA”). Without this annual exercise, everyone at the Bureau of Industry and Security (“BIS”) would have to pack up their desks and go home. Also, without this declaration you could freely export uranium enrichment centrifuges to Iran.

Of course, the extent of the President’s authority to, in effect, resurrect an expired legislative scheme that Congress has itself declined to resurrect is open to some degree of question. In the Micei International case, the D.C. Circuit held that the President did not have the authority to extend the direct review provisions of the EAA.

The only way to eliminate the whole question as to what parts, if any, of the EAA can be resuscitated by executive fiat is for Congress to pass export reform legislation. I am not holding my breath.

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Copyright © 2011 Clif Burns. All Rights Reserved.
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