Former President Donald Trump has stated not only that the war against Ukraine would not have started on his watch, but that if elected he will make a deal to end the war within 24 hours of his inauguration. He doubled down during the Sept. 10 presidential debate, saying he would end the war before he even takes office. These statements should alarm anyone who believes in the rule of law or who advocates for a just peace.
The extensive and unprecedented sanctions imposed on Russia by the United States, G7, and coalition countries may become bargaining chips in any negotiation to end the bloody and unjustified war Russian President Vladimir Putin started against Ukraine. The process for lifting the broad economic sanctions on Russia, therefore, merits discussion in light of the role the upcoming U.S. presidential elections and the role the United States will likely play in any future negotiations.
In any talks concerning Russia’s war against Ukraine, Ukraine will ensure the focus is on territorial integrity, security guarantees, accountability, and reparations. And while lifting sanctions may be seen as a major bargaining chip, a strong case can be made that sanctions must remain in place until there is regime change in Russia. This is especially true given Putin’s track record of noncompliance with international agreements such as the Budapest Memorandum and the Minsk Agreement and, most fundamentally, the bedrock obligations on non-use of force in the UN Charter.
It is also worth noting that the US/Ukraine Bilateral Security Agreement signed in June of 2024 confirms in multiple instances U.S. policy of utilizing sanctions in connection with Russia’s aggression and that lifting sanctions is not a part of what is known publicly about Ukrainian President Volodymyr Zelensky’s peace/victory plan.
Under U.S. law, a president has significant ability to both lift sanctions and grant exceptions to sanctions. However, that ability is not absolute with respect to sanctions imposed pursuant to specific sanctions laws enacted by Congress. The executive branch rightfully needs flexibility with respect to economic sanctions, and Congress has respected that need in recent legislation. However, exercising the discretion Congress has provided assumes a president acts in a judicious manner consistent with U.S. law and the national interest.
The question, then, is what might happen if a president chooses to disregard statutory procedures for lifting sanctions. Leading international and constitutional law scholars are now asking questions unthinkable a decade ago about the fragility of the U.S. democracy and the possibility and consequences of a president acting contrary to the law. In this scenario, courts may have very limited power to act. Perhaps the best, if not the only, recourse to preserving rule of law and democratic processes is ensuring we elect leaders who uphold those values.
What is the domestic legal basis for issuance of economic sanctions?
Under the U.S. Constitution, the executive branch has power over certain aspects of foreign affairs while Congress has power over other aspects of foreign affairs. Congress, not the President, has the power under the Constitution to regulate international commerce.
With respect to economic sanctions, which implicate both foreign affairs and international commerce, the mechanism for imposing and lifting sanctions is: 1), Congress legislates and delegates power to the president; and 2), the president and executive branch (primarily through the Treasury and its Office of Foreign Assets Control (OFAC), the State Department and the Commerce Department) use this delegated authority to implement and enforce sanctions.
The president’s delegated authority with regards to sanctions can be under a general or specific delegation from Congress. This distinction matters when it comes to lifting sanctions.
What is the President’s statutory authority to impose and lift economic sanctions?
Congress delegated general authority to the president to issue sanctions, among other actions, pursuant to the International Emergency Economic Powers Act (IEEPA) upon a declaration of a “national emergency” under the umbrella statute of the IEEPA – the National Emergencies Act (NEA). The IEEPA and NEA do not address specific situations or policies but are general in nature and authorize the president to impose sanctions upon the declaration of a national emergency meeting certain criteria, without further congressional approval. National emergency declarations automatically terminate after one year but may be continued by the president on an annual basis indefinitely.
President Obama first declared a national emergency with respect to Ukraine on March 6, 2014, in response to the illegal purported annexation of Crimea, in Executive Order 13660. That Executive Order was subsequently expanded and continued in response to various actions of the Putin regime, most recently through a notice of continuation on March 4, 2024. The executive branch has issued numerous Russia-related sanctions on the basis of this declaration and IEEPA authority, as well as on the basis of a subsequent declaration of a national emergency by President Biden under the NEA on April 15, 2021 in Executive Order 14024.which also has been continued annually.
Executive Order 14024, as amended, addresses national security threats and covers, among other things, cyber-related activities, election interference, corruption, Russian sovereign assets, secondary sanctions on foreign financial institutions involved in facilitating or financing Russia’s war, sanctions evaders, and persons in the Russian technology, construction, manufacturing, financial and energy sectors.
Apart from the one-year automatic termination of national emergencies provided in the NEA, a national emergency can be terminated either by presidential proclamation or by a law enacted through a joint resolution of Congress (i.e., a resolution passed by a majority of both houses). A joint resolution is subject to presidential veto, which in turn can be overridden by the vote of two-thirds each of the House and Senate.
The NEA provides that in case of termination of a national emergency, subject to limited exceptions, “any powers or authorities exercised by reason of such emergency shall cease to be exercised after such date.”
With respect to Russia sanctions, if a president terminates the national emergency related to Ukraine, subject to limited exceptions, the authority to continue IEEPA sanctions terminates as set forth above, unless the sanctions are in place under a statute other than the IEEPA. If Congress disagrees with the termination, it could conceivably take legislative action (subject to veto and override) to reinstate those actions through a new statute. It is unlikely that judicial review will be available to challenge termination of a national emergency given standing requirements.. For example, it would be difficult for a plaintiff to show the kind of constitutionally recognized factual injury that would allow them to file suit in federal court. Political preferences and public opinion may or may not be effective sources of pressure on the president.
Beyond IEEPA: What authority does the President have to impose and lift economic sanctions on Russia?
A number of additional statutes direct or authorize the president to impose Russia sanctions in response to specific events. These specific statutory delegations (such as those described below) may include provisions on terminating, modifying, amending or waiving (collectively, lifting) the relevant sanctions. The provisions for lifting Russia sanctions in existing statutes vary and have become more stringent and objective over time. Statutes enacted before the annexation of Crimea give the president more discretion in lifting sanctions. The Countering America’s Adversaries Through Sanctions Act (CAATSA), enacted in 2017, gives the president less discretion and the Rebuilding Economic Prosperity and Opportunity for Ukrainians Act (REPO Act), enacted in 2024, goes further and looks to objective events. This progression largely reflects the evolving nature of the perceived threat Russia’s actions present. Examples of specific delegation statutes related to Russia sanctions include the following:
Magnitsky Sanctions. The Sergey Magnitsky Rule of Law Accountability Act (Magnitsky Act,) enacted in December 2012 (later effectively expanded to provide for a global reach in December 2016 through the Global Magnitsky Act) was a response to the death of Sergei Magnitsky in a Moscow prison on November 16, 2009. Magnitsky, held in pretrial detention, was a Russian tax lawyer investigating government corruption when he was detained in December 2008. The Magnitsky Act contemplates a target list of persons associated with human rights abuses and corruption and authorizes (but does not require) the president to impose sanctions.
The president can terminate Magnitsky sanctions with respect to specific individuals if the President “determines and reports” to the appropriate congressional committee that (i) credible information exists that the person did not engage in the harmful activity; OR (ii) the person has been prosecuted appropriately; OR (iii) the person has credibly demonstrated changed behavior and taken other actions; OR (iv)with respect to sanctions under the Global Magnitsky Act, termination is in the national security interests of the United States. The language of the termination provision refers to “a determination by the President,” and includes events or conditions subject to some degree of interpretation or assessment, thereby giving the president a significant degree of discretion.
The Ukraine Freedom Support Act (UFSA) and the Sovereignty, Integrity, Democracy and Economic Stability of Ukraine Act (SSIDES) were both enacted in 2014 in response to Russia’s illegal annexation of Crimea and aggression in Eastern Ukraine. These laws contemplated certain sanctions on the Russian defense and energy sectors, including restrictions on dual use technologies, financial institutions, and persons responsible for human rights and international law violations, corruption, and sanctions evasion. UFSA and SSIDES sanctions were subsequently codified under CAATSA (see below) which made lifting such sanctions subject to the more robust congressional review, termination, and waiver procedures in CAATSA.
Countering America’s Adversaries Through Sanctions Act (CAATSA), enacted in 2017 as a response to election interference and the continued wars in Ukraine and Syria, imposes sanctions on Iran, North Korea and Russia. The bill passed the Senate (98-2) and the House (419-3) by clear veto proof majorities and was signed into law by Trump despite his statements that it was unconstitutional and would hamper his ability “to strike good deals.” Several U.S. lawmakers expressed concern that Trump would try to sidestep the law and seek to strike a deal that is not in the national interest of the United States.
Title II of CAATSA – Countering Russian Influence in Europe and Eurasia Act of 207 (CRIEEA) -required that the president impose new Russia sanctions in relation to sanctions violators and facilitators, human rights abuses, support to Syria, persons engaged in significant transactions with the Russian defense and military sectors, and Russian privatizations characterized by corruption. CAATSA codified UFSA and SSIDES sanctions. Later, the Protecting Europe’s Economic Security Act of 2019 (PEESA) expanded CRIIEA sanctions with respect to energy export pipelines such as the Nord Stream 2 pipeline. Very importantly, CAATSA also codified a number of Obama-era sanctions imposed under previous executive and State Department orders.
CAATSA contemplates congressional review of actions to ease or lift sanctions. The Act specifically requires the president to submit a report to appropriate congressional committees and leadership prior to lifting Russia sanctions. The report must describe the proposed action and state whether it is intended to significantly alter U.S. foreign policy toward Russia, and if so, provide more detail. Congress may then issue a joint resolution of disapproval, passed by both the House and the Senate, which is subject to veto and override. The president is also required to provide notices and in some cases certifications or written determination prior to lifting Russia sanctions. The substance varies and can relate to any of the following: the national security interest, furthering enforcement of CRIIEA, cessation of activities that gave rise to sanctions, implementation of the Minsk Agreement or reduction of cyber intrusions by Russia.
The upshot is that CAATSA created impediments to lifting many Russia sanctions. Additionally, any licensing action with respect to a sanction that significantly alters U.S. foreign policy regarding Russia is subject to CAATSA.
Suspending Normal Trade Relations with Russia and Belarus Act (SNTR Act) and the Ending Importation of Russian Oil Act were both enacted in 2022 almost immediately after, and in response to, Russia’s full-scale invasion of Ukraine. While the SNTR Act technically does not relate to sanctions, functionally it has the same intended effect as it suspends normal trade relations with Russia and Belarus, denying benefits of World Trade Organization membership to Russia and Belarus by the United States and putting these two countries in the same category as Cuba and North Korea. The Ending Importation of Russian Oil Act, codified Executive Order 14066 prohibiting imports of various Russian oil products into the United States.
Under the SNTR Act, the president has the authority to resume certain aspects of normal trade relations for one year periods subject to prior consultation with appropriate congressional committees and a determination that Russia or Belarus or both 1) have reached an agreement as to the cessation of military hostilities which has been accepted by the “free and independent government of Ukraine;” AND 2) do not pose an immediate threat of aggression against any NATO country; AND 3) recognize the right of the Ukrainian people to independently and freely choose their own government (note the references to “free and independent government,” and “independently and freely,” which presumably reflect concerns about a puppet state). Any such determination is subject to a joint resolution of disapproval which in turn is subject to veto and override. The Ending Importation of Russian Oil Act contemplates similar requirements for lifting sanctions.
These SNTR Act and the Ending Importation of Russian Oil Act certification requirements differ from those in earlier legislation, and evidence a greater concern with national security and threats to democracy and NATO countries. The certifications require “determinations” by the president, but these determinations are more robust and less discretionary in that they relate to objective events such as troop withdrawal and agreements reached. In addition, the requirements are additive (prongs one, two and three must be certified), as opposed to alternative as in prior requirements (in which, for example, one condition or another must be certified).
The Rebuilding Economic Prosperity and Opportunity for Ukrainians Act (REPO Act) was enacted in April of 2024 after vigorous advocacy by the Ukrainian government, NGOs and others for seizing and repurposing frozen Russian sovereign assets (RSA)-mainly financial assets and cash held at financial institutions – to support Ukraine. The REPO Act sets forth the timing and procedure for seizure and mechanics for repurposing the approximately $4-5 billion of RSA in the United States (out of a total of $300 billion globally) to support Ukraine. Under the REPO Act, the president is required to gather information on RSA and report that information and then is authorized (but not required) to seize the identified RSA.
The authority to seize RSA has received a lot of attention, but an equally important provision of the REPO Act is the limitation on releasing RSA blocked or immobilized pursuant to U.S. sanctions. RSA cannot be released prior to the sunset date (the earlier of five years from enactment of the REPO Act and 120 days after the president determines and certifies to Congress that 1) Russia has agreed to withdraw forces and has ceased military hostilities and that agreement has been accepted by the “free and independent government of Ukraine” (note the qualifier “free and independent” which again evidences some concern about an agreement reached with a puppet state); and 2) full compensation to Ukraine has been made or an agreement has been reached with Ukraine.
RSA cannot be released or mobilized prior to the sunset date unless the president certifies to the appropriate congressional committees that 1) “hostilities between Russia and Ukraine have ceased;” AND 2) either (A) full compensation has been made for harms; OR (B) the Russian Federation is participating in a bona fide international mechanism for all compensation owed. The certifications are a high bar. The language used is objective language and does not refer to determinations by the president. A joint resolution, which is then enacted into law (subject to veto and override), may prohibit the release or mobilization of frozen or blocked RSA.
In April 2024 Senator JD Vance issued a memo opposing the REPO Act on the basis that that removing a future president’s ability to end or alter sanctions would undermine the prospects of reaching a peace deal. The memo demonstrates both a desire to horse trade with Russia without congressional or other oversight and, on the other hand, an admission that the requirements of the REPO Act (similar in spirit to those in other statutes) are, indeed, limitations.
What if the required determinations and certifications for lifting sanctions have no reasonable basis or are false?
With respect to the specific statutory delegations that require determinations and certifications, we are now compelled to imagine and to ask what would happen if a president made determinations or certifications that lack a factual basis. If Congress disagrees with the president’s determination (for lack of a reasonable basis or due to a disagreement on foreign policy or any other reason), it could pass new legislation, which is unlikely to be enacted in a polarized political environment, particularly given that such legislation would also be subject to veto. It is worth noting that congressional investigations and impeachment may be options but the feasibility and effectiveness are open to question.
What about chipping away at Russia sanctions?
The executive branch has significant authority to create exceptions to sanctions including by waiving the application of sanctions, by issuing general and specific licenses and removing individuals from lists. This may be a means of easing Russia sanctions. How this ability is utilized will largely depend on who is in office.
Can a President acting alone terminate U.S. participation in the oil price cap coalition?
On Dec. 22, 2022, the G7 and sanctions coalition partners introduced the oil price cap (OPC) with the dual aims of cutting off Russian oil revenues used to fund its war against Ukraine and protecting energy security. The OPC contemplates a prohibition on persons involved in the trade of Russian oil and oil products from providing certain services related to maritime transport of Russian oil unless the oil was purchased at or below the price cap.
The OPC is itself a policy which can be altered by the president. To implement the OPC, OFAC issued two determinations pursuant to Executive Order 14071, which can be terminated by the president. Congress can respond to any such termination by codifying the OPC restrictions, but that would raise any number of objections and challenges, may be politically unfeasible, and would again be subject to presidential veto.
On the other hand, a president who attempts to terminate the OPC prematurely will need to be fully cognizant of responses from other G7 and sanctions coalition allies. This may or may not act as a constraint.
Is imposing sanctions and, conversely, is lifting sanctions subject to the notice, public comment and delay in effectiveness requirements of the Administrative Procedures Act?
No.
Rulemaking requirements and procedures mandated by the Administrative Procedures Act (APA) do not apply to the extent that the rules reflect a foreign affairs function of the U.S. government. While the precise scope of the foreign affairs exception is unclear in many regards, sanctions are generally considered within that exception for a number of reasons, including the need for expediency in implementation. Specifically, this exception with respect to OFAC has been codified in the Code of Federal Regulations (CFR), which provides that, in general, rulemaking by OFAC involves foreign affairs and is exempt from APA requirements for notice, public comment, and delay in effective date.
Can the President ignore statutory termination provisions under Zivotofsky v. Kerry?
No.
Zivotofsky vs. Kerry, a 2015 U.S. Supreme Court case, merits discussion and should be distinguished. Zivotofsky does not address sanctions but does address foreign affairs and separation of powers. Zivotofsky is notable in that it is the first case in which a President, acting in a manner obviously contrary to congressional mandates, nonetheless prevailed before the Supreme Court based on exclusive constitutional authority. But with respect to specific statutory provisions to lift sanctions, Zivotofsky does not allow the president to disregard the statutorily-imposed procedures for lifting sanctions. This is because imposition and lifting of sanctions are based on shared powers, and not an exclusive presidential power.
Zivotofsky involved a statute that required the State Department to identify a person’s place of birth as “Israel” if that person was born in Jerusalem and so requested. At the same time, the foreign policy of the United States was that the status of the territory of Jerusalem was neutral—neither Israel nor Palestine. The Supreme Court held that the statute was unconstitutional in that it infringed on the exclusive presidential power to recognize a sovereign. The court set out three categories of analysis based on Justice Jackson’s concurrence in the 1952 Youngstown Steel Seizure cases on the sharing of power and the president’s authority in foreign affairs. Essentially, the three categories set out a continuum of presidential power.
The third category, which is relevant to lifting sanctions, is when the president acts contrary to the express or implied will of Congress. In those circumstances, the president’s power is lowest and the president can only act on the basis of independent power. The Zivotofsky court held that while the president was acting contrary to the express will of Congress, the statute at issue in that case was unconstitutional because Congress did not have power to legislate as the power to recognize sovereign states is exclusive to the president.
The Zivotofsky holding, reasoning and interpretations do not apply to lifting statutorily imposed sanctions as the president does not have exclusive power with respect to economic sanctions. The termination provisions in these statutes are constitutional under Zivotofsky and the president cannot choose to ignore those procedures.
Rule of law values matter
Despite these clear constraints on unilateral presidential action described here, it merits noting that the inclination of the executive branch and, in particular, the Department of Justice’s Office of Legal Counsel, is to take aggressive positions on the scope of executive power. So, it is conceivable that a president who takes a transactional approach to governing and not an approach grounded in rule of law principles may seek legal justification for disregarding statutory termination provisions. It is also conceivable that a president with little regard for the rule of law would disregard statutory constraints even without the advice of counsel. This is even more likely if an aggressive approach to “getting a deal done” with Russia is adopted.
When it comes to lifting Russia sanctions in a judicious and responsible manner, what will matter most is that our elected leaders respect Constitutional processes and the rule of law. Statutes, the Constitution, Congress, and the judiciary may not offer adequate protection if a president chooses to ignore the law.