LENS Essay Series: “Xiaomi v. U.S. Department of Defense: Defending the International Emergency Economic Powers Act”
Today’s post introduces another addition to the LENS Essay Series, and it is a terrific piece of scholarship by a wonderfully talented Duke Law 3L, Bailey Williams. Her work is entitled “Xiaomi v. U.S. Department of Defense: Defending the International Emergency Economic Powers Act” and I urge you to read it.
Ms. Williams’ article is a perfect example of the increasing tie between business matters and national security issues. This is something I believe will continue to grow as the U.S. and other nations resort to a range of economic and financial tools to address national security concerns. In the 21st century, every national security law practitioner needs to understand this dimension of national power.
Bailey’s essay walks us through a complicated area in a way that is accessible to virtually all readers. An abstract of her work is below, but be sure to read the full essay found here.
Abstract:
The International Emergency Economic Powers Act (IEEPA) provides the Executive with emergency authority to act in the realm of foreign affairs and national security. As global power struggles increasingly play out in financial markets as opposed to battlefields, the United States is leveraging global capital markets, banking, and financial systems to effectuate national security goals – and is relying on IEEPA to do so. However, critics argue IEEPA lacks appropriate procedural safeguards given the courts’ general deference to the Executive acting pursuant to national security and the corresponding lack of Congressional oversight.
After assessing various criticisms of IEEPA, this paper rejects proposed IEEPA reforms and argues IEEPA’s existing statutory accountability mechanisms, when paired with proper judicial review under the Administrative Procedure Act (APA), strike a reasonable balance between ensuring accountability and maintaining an effective and flexible foreign policy tool.
In doing so, this paper relies on the recent decision from the D.C. District Court, Xiaomi Corporation, et al., v. Department of Defense, to demonstrate how the APA provides effective procedural constrains on the Executive power when acting pursuant to IEEPA. The Xiaomi decision represents a departure from the judiciary’s traditional deference to the Executive when acting pursuant to IEEPA and presents a compelling case study to consider both the scope of, and limits on, executive power.
About the Author:
Bailey Williams (J.D./LL.M. 2022) is a 3L at Duke University School of Law, where she is the Managing Editor of the Duke Journal of Constitutional Law and Public Policy. She grew up in Green Cove Springs, FL and graduated in 2016 from the Florida State University with a B.A. in International Affairs and Economics. Following graduation from Duke Law, Bailey will return home to Florida and will join the Jacksonville office of Foley & Lardner.
