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Q: Codification of Executive Order sanctions against a foreign country ( Answered,   3 Comments )
Subject: Codification of Executive Order sanctions against a foreign country
Category: Relationships and Society > Law
Asked by: virtualso-ga
List Price: $50.00
Posted: 29 Mar 2006 13:17 PST
Expires: 28 Apr 2006 14:17 PDT
Question ID: 713290
What does "codification of sanctions against Iran" mean within the
context of Title 1, sec. 101, (a) of H.R. 282 "Iran Freedom Support
Act" as passed by the House of Representatives committee on
International Relations on March 15, 2006?  The "sanctions against
Iran" in this case refers to the the sanctions stipulated by Executive
Orders 12957, 12959, and sections 2 and 3 of 13059.  I've heard that
the "codification of sanctions against Iran" would make it more
difficult for the US President to terminate the sanctions.  How so?
Subject: Re: Codification of Executive Order sanctions against a foreign country
Answered By: pafalafa-ga on 29 Mar 2006 17:00 PST

I agree with the comment below.  This is, indeed, an interesting
question.  As a former Congressional staffer, I have a particular
interest in the topic.

"Codification" is simply a high-falutin' word we like to use in
Washington DC, meaning, essentially, "to make into law".  More
specifically, it refers to the process of writing laws and regulations
according to the formal 'code' under which they are organized.

You can read a bit more about the general process of codification here:

and a bit about codification as specific to the US, here:
United States Code

So, the idea behind the "codification of sanctions against Iran" is to
take sanctions already written (wherever they may be) and to 'codify'
them by incorporating them into law and US Code.

The actual bill in question can be seen here:
H. R. 282

The stated purpose of the bill is this:

To hold the current regime in Iran accountable for its threatening
behavior and to support a transition to democracy in Iran.

and the title is:

This Act may be cited as the `Iran Freedom Support Act'. 

There are several sections to the bill, but one that is pertinent to
your question is:




(a) Codification of Sanctions Related to Weapons of Mass Destruction-
United States sanctions, controls, and regulations relating to weapons
of mass destruction with respect to Iran, as in effect on the date of
enactment of this Act, shall remain in effect, until the President
certifies to the Committee on International Relations of the House of
Representatives and the Committee on Foreign Relations of the Senate
that the Government of Iran has permanently and verifiably dismantled
its weapons of mass destruction programs and has committed to
combating the proliferation of such weapons.

(b) No Effect on Other Sanctions Relating to Support for Acts of
International Terrorism- Notwithstanding a certification by the
President under subsection (a), United States sanctions, controls, and
regulations relating to a determination under section 6(j)(1)(A) of
the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)),
section 620A(a) of the Foreign Assistance Act of 1961 (22 U.S.C.
2371(a)), or section 40(d) of the Arms Export Control Act (22 U.S.C.
2780(d)) relating to support for acts of international terrorism by
the Government of Iran, as in effect on the date of the enactment of
this Act, shall remain in effect.


If I may paraphrase, paragraph (a) says:  any existing sanctions
currently in place that relate to WMD in Iran, must remain in effect
unless the President formally tells Congress that (1) Iran has
dimantled all WMDs, and (2) has joined the international community in
fighting the proliferation against such weapons.

Paragraph (b) says:  existing laws passed by Congress that pertain to
sanctions against Iran are not involved in this process.  That is,
they are unaffected by anything the President does.

In essence, then, the bill is saying:  in order to remove any existing
sanctions, the President has to come to Congress first, but he (or
she...Hey! It could happen...) can't do anything to affect sanctions
imposed by laws passed by Congress.

So, if the President can't affect sanctions imposed by law, then
what's left?  Pretty much, Executive Orders.

The proposed law is an attempt (a clumsy one, if you ask me) to
hamstring the Executive Office, by saying that the President cannot
rescind any existing Executive Orders regarding WMD sanctions against
Iran, unless and until he first jumps through some certification hoops
created by Congress.

This bill has not become law, so the actual impact it would have had
on the White House is a matter of speculation, at best.

However, the bill strikes me as being so weakly drafted -- and such an
affront to the doctrine of separation of powers -- that I doubt it
could pass, and if by some chance it does, I doubt it would can
withstand a test in court.

A primary weakness of the bill is its imprecision.  The bill refers to
"sanctions, controls, and regulations relating to weapons of mass
destruction with respect to Iran" without detailing what those
sanctions, etc. are!  Contrast that with the language in paragraph
(b), where the Congressional laws are clearly and unambiguously
referenced.  As written, it would be very difficult for any two people
to agree on exactly what sanctions, controls, regulations are covered
by the language in this bill.

Beyond that, the attempt to restrict the President's powers -- as
described in the comment by doubledizzel-ga -- strikes me as blatantly
unconstitutional.  In all likelihood, had Congress passed the law, the
President would have ignored it, and would have asked the Solicitor
General of the United States to take the law to the Supreme Court in
the hopes of having it declared unconstitutional.

I trust this is exactly the information you were after.

However, please don't rate this answer until you have absolutely
everything you need.  If there's something else I can do for you, just
post a Request for Clarification, and I'm at your service.



search strategy -- personal knowledge, along with a Google search of [
Iran Freedom Support Act ]
Subject: Re: Codification of Executive Order sanctions against a foreign country
From: doubledizzel-ga on 29 Mar 2006 15:27 PST
This is an interesting question.  I will give a brief response. 

The president is authorized by Article II of the U.S. Consitution to
issue executive orders. Congress is authorized to legislate. The
relevant of the Iran Freedom Support Act applies to Executive Orders,
because they are "regulations".The word codification, with respect to
executive orders, refers to congress passing legislation that has
similar or the exact wording of the executive order. It's odd that the
act you mention only has the word codification in titles, and doesn't
directly codify anything.  What it does do, particularly with respect
to the executive orders you mentioned, is restrict the president's
ability to revoke the executive orders, or as you put it, terminate
the sanctions.  As previously, the president would have the unfettered
ability to change, modify, or revoke the executive order in any way,
the Iran Freedom and Support Act, if codified, would require him to
certify to the house and senate that iran had stopped their nuclear
programs permanently, and now adheres to a policy of

While the above paragraph may answer your question, there are a number
of other questions that should be considered.  First, would this
violate the separation of powers?  I believe it would not.  Although
the president has plenary power over the executive branch, which
congress cannot interfere with, the issuance of these particular
executive orders are not to regulate executive agencies, but
effectively make laws.  This seems to be a case where congress can
effectively control an executive order by passing legislation. 
Second, will congress be able to pass this legislation?  It is very
unlikely that the president would agree to this bill, unless he
already had the intention of keeping the sanctions going.  If not, he
would veto it, at which point it would have to pass a 2/3 votes of
both houses of congress to become law.  However, if the President does
agree with the sanctions, signing the bill into law could be an
effective way of reducing future presidents' ability to remove the
sanctions.  Third, what exactly is required of the president.  A
certification that Iran has permanently stopped their nuclear arms
programs and agrees to nonproliferation pursuant to verifiable data. 
While the President may certify this without knowing, absolutely,
Iran's strategy, he must have some verifiable evidence to cover his
arse.  Generally a certification is a statement accompanied by an oath
which would subject the person to a penalty in the case of perjury. 
In this case, a criminal charge of purjury (although the charge would
have to be in the form of an impeachment.)
Subject: Re: Codification of Executive Order sanctions against a foreign country
From: doubledizzel-ga on 31 Mar 2006 12:38 PST
I'm currently looking up precident to determine the constitutionality
of the proposed legislation.

Although, note that I don't think the president would pass any
limitation on his powers, and I don't think that the bill will pass
the senate in its current form.  But that's just speculation.
Subject: Re: Codification of Executive Order sanctions against a foreign country
From: doubledizzel-ga on 31 Mar 2006 13:10 PST
I am unable to find legal precident applicable where (1) the president
is making law through an executive order that (2) affects both foreign
and domestic policies and (3) congress supports the executive order
and (4) is attempting to curtail the President's ability to revoke the
law.  It seems to be a counter-intuitive situation.  Generally, you
would find a situation where the President makes law thorugh an
exeuctive order, and Congress disagrees with the order, wishing to
invalidate it.  Furthermore, Congress is much less likely to challenge
executive lawmaking in the case of foreign relations decisions.  If I
had to guess, I would guess that the bill is an attempt to curtail
"future presidents' " ability to rescind past executive orders
concerning sancitons against Iran.

While it is within the President's power to effectively legislate
concerning foreign affairs matters (especially those concerning the
security of the United States) through executive orders, there is also
a corresponding and greater power of congress.  If Congress wants to
codify sanctions against Iran, it definately has the right to do so. 
Although the current vehicle--expressed as a bill that would curtail
the right of the President to rescind an executive order--may be
misguided, there are a number of other ways that congress could
acheive their goal.  They could codify the text of the sanctions,
rather than by reference.  This power is explicitly granted to
Congress by Article I, "to regulate Commerce with Foreign Nations..."
of the Constitution.  It would seem to me, in my experience with
Constitutional law, that Congress's Enumerated power to regulate
foreign commerce would outweigh the President's implied power to pass
law through executive orders.  Even if there is a violation of the
separation of powers by Congress' passing the Iran Freedom and Support
Act, and the president was able to revoke the aforementioned executive
orders, Congress would be constitutionally able to reinstate them
through direct legislation of the executive orders' terms. 
Furthermore, tt would be a tough case to litigate, as it would likely
be rendered moot (by Congress passing legislation), or be considered
an unjusticiable political question that is constitutionally committed
to another branch of government.

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