Authority of the President to Restrict Munitions Imports Under the Arms Export Control Act ( 1996 )

Authority of the President to Restrict Munitions Imports Under
the Arms Export Control Act
Restricting the import o f certain classes o f Russian firearms and ammunition that are deemed an unac­
ceptable risk to public safety is a legitimate use o f the President’s authority under the Arms Export
Control Act to restrict the import of munitions in furtherance of United States foreign policy.
February 9, 1996
M e m o r a n d u m O p in io n fo r th e S p e c ia l A s s is t a n t to th e P r e s id e n t
and L e g a l A d v is o r to th e N a t io n a l S e c u r it y C o u n c il
This letter addresses and explains the basis for the oral advice that we provided
in early April 1995 regarding the President’s authority under the Arms Export
Control Act, 22 U.S.C. §§2751-2799aa-2, (“ AECA” ) to restrict the import of
certain munitions from the Russian Federation in furtherance of United States for­
eign policy. The question arises in connection with the Administration’s plan, as
part of a general program of eliminating Cold War restrictions on trade and eco­
nomic cooperation with Russia, to take steps to remove Russia from the Inter­
national Traffic in Arms Regulations (“ ITAR” ) list, which provides that it is
the policy of the United States to deny licenses for the import of defense articles
originating in certain countries, including Russia. 27 C.F.R. §47.52 (1995). Rus­
sia’s presence on the ITAR list means American businesses are not granted li­
censes necessary to import Russian munitions. Once Russia is off the ITAR list,
there would be no general prohibition on gun imports from Russia. We understand
that the issue concerns the negotiation of voluntary export restraints with Russia
to ensure that, once Russia is removed from the ITAR list, munitions imports
from Russia would not jeopardize public safety.1 The question has been raised
whether the President possesses authority under the AECA to limit the import
of munitions from Russia. We have concluded that restricting the import of Rus­
sian munitions to certain classes of firearms and ammunition is a legitimate use
of the President’s authority under the AECA to restrict the import of munitions
in furtherance of United States foreign policy.
Section 38 of the AECA authorizes the President to control the import and
the export of defense articles and defense services “ [i]n furtherance of world
peace and the security and foreign policy of the United States.” 22 U.S.C.
§ 2778(a)(1). Section 38 further authorizes the President “ to designate those items
which shall be considered as defense articles and defense services for the purposes
of this section and to promulgate regulations for the import and export of such
articles and services.” Id. The Act generally requires a license as a condition
1 W e understand th a t the issue m ay also have been raised w hether voluntary restrain t ag reem en ts restrictin g im ports
o f R u ssian m unitions vio late the G eneral A greem ent on T ariffs and T rade o r W orld T rad e O rg an iza tio n ru les. W e
have taken no position on that issue.
49
Opinions o f the A ttorney General in Volume 20
of exporting or importing any defense articles so designated by the President.
22 U.S.C. §2778(b)(l)(B)(2).
By Executive Order 11958, as amended, the President has delegated his author­
ity under section 38 to the Secretaries of State, Treasury, and Defense. Exec.
Order. No. 11958, 3 C.F.R. 79 (1978), reprinted as amended in 22 U.S.C. §2751
note (1996). The delegation grants the Secretary of the Treasury primary responsi­
bility for issuing and administering permanent import controls of defense articles
and services, and grants the Secretary of State primary responsibility for issuing
and administering regulations relating to the rest of section 38, including export
restrictions. The Secretary of the Treasury’s authority over imports is subject to
the qualification that the Secretary “ shall be guided by the views of the Secretary
of State on matters affecting world peace, and the external security and foreign
policy of the United States.” Id. § 1(1)(2), 3 C.F.R. at 81, reprinted as amended
in 22 U.S.C. §2751 note. We understand that, pursuant to this qualification, it
has been the consistent practice of the Secretary of the Treasury to defer to the
Secretary of State’s views on these matters.
Pursuant to the delegation of authority, the Departments of State and Treasury
issued regulations to implement the Act. See International Traffic in Arms Regula­
tions, 22 C.F.R. pts. 120-130 (1995) (State Department regulations); Importation
of Arms, Ammunition and Implements of War, 27 C.F.R. pt. 47 (1995) (Treasury
Department regulations). The designation of defense articles subject to import re­
strictions is set forth in the U.S. Munitions Import List at 27 C.F.R. §47.21 and
includes categories for firearms and ammunition.
We understand that one part of the Administration’s trade negotiation with Rus­
sia involves the possible importation into the United States from Russia of arms
for sporting and hunting purposes. The Administration intends to continue to pre­
vent imports of certain classes of weapons that are deemed to pose an unaccept­
able risk to public safety. In our view, the AECA would authorize imposition
of controls on such imports.
As previously stated, section 38 authorizes the President to control the import
of defense articles “ [i]n furtherance of world peace and the security and foreign
policy of the United States.” 22 U.S.C. §2778(a)(l). The Federal Circuit recently
affirmed the President’s authority under the AECA to prohibit the import of arms
in furtherance of foreign policy objectives. B -W est Imports, Inc. v. United States,
75 F.3d 633 (Fed. Cir. 1996). We understand that the Administration’s objective
in removing Russia from the ITAR list is to improve American-Russian trade
relations, remove Cold War restrictions to economic cooperation, and expand eco­
nomic opportunities for both countries. These objectives reflect significant United
States foreign policy goals. Thus, there can be no doubt that the bilateral trade
reform contemplated by the Administration is designed to further the foreign pol­
icy of the United States. Accordingly, the contemplated import controls fall
squarely within the statutory authorization of section 38.
50
Authority o f the President to Restrict Munitions Imports Under the Arms Export Control A ct
We note that it could be argued that protecting public safety — the reason for
limiting the importation of munitions into the United States— is a domestic, not
a foreign policy concern. Even assuming that protecting public safety is viewed
as exclusively a domestic issue, we do not believe this calls into question the
President’s authority under section 38 (as delegated to the Secretaries of Treasury
and State) to control import of munitions. United States foreign policy usually
includes as one component the promotion of domestic goals or the avoidance of
a negative impact on domestic concerns in the process of pursuing a foreign policy
objective. Taking into account the domestic effects of foreign policy does not
change the fact that it is foreign policy that is being set. See, e.g., M issouri v.
Holland, 252 U.S. 416 (1920) (President possesses authority to promote foreign
policy through treaty power even where object affected is a local concern). Indeed,
it would be artificial as well as practically impossible to separate the two. So,
for example, in committing American troops to a peacekeeping action, the Presi­
dent may consider domestic concerns in defining the purpose and length of time
of American involvement. Similarly, in the present context, existing controls on
imports — which were imposed in furtherance of foreign policy— are being re­
laxed— again in furtherance of foreign policy. The extent to which the United
States is willing to ease trade restrictions in pursuance of its foreign policy objec­
tives is limited to ensure that it does not jeopardize public safety.
Courts, in affirming the broad grant of authority to the President under the
AECA to control the export and import of firearms on foreign policy grounds,
have advised that “ statutes granting the President authority to act in matters touch­
ing on foreign affairs are to be broadly construed: ’’
In the external sector of the national life, Congress does not ordi­
narily bind the President’s hands so tightly that he cannot respond
promptly to changing conditions or the fluctuating demands of for­
eign policy. Accordingly, when Congress uses far-reaching words
in delegating authority to the President in the area of foreign rela­
tions, courts must assume, unless there is a specific contrary show­
ing elsewhere in the statute or in the legislative history, that the
legislators contemplate that the President may and will make full
use of that power in any manner not inconsistent with the provi­
sions or purposes of the Act. In a statute dealing with foreign af­
fairs, a grant to the President which is expansive to the reader’s
eye should not be hemmed in or “ cabined, cribbed, confined” by
anxious judicial blinders.
B-W est Imports, Inc. v. United States, 75 F.3d at 636 (quoting South Puerto R ico
Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 632 (Ct. Cl. 1964));
see also Samora v. United States, 406 F.2d 1095 (5th Cir. 1969). Finally, as the
51
Opinions o f the Attorney General in Volume 20
court noted in South P uerto Rico Sugar Co. in sustaining the President’s discretion
to impose conditions on imports, Presidents acting under broad statutory grants
of authority have “ imposed and lifted embargoes, prohibited and allowed exports,
suspended and resumed commercial intercourse with foreign countries” thereby
reflecting “ the historical authority of the President in the fields of foreign com­
merce and of importation into the country.” 334 F.2d at 633, 634. The court
specifically cautioned that “ [i]t would be difficult, and probably unwise, to sepa­
rate an executive choice in [the area of international economic relations] from
the ‘important, complicated, delicate and manifold problems’ facing the President
in the ‘vast external realm.’ ” Id. at 630 (quoting United States v. Curtiss-Wright
E xport C orp., 299 U.S. 304, 319 (1936)). In determining how far to open United
States markets to Russian arms manufacturers, the President is faced with just
such a delicate confluence of factors that requires that United States foreign policy
integrate international commercial policy with domestic policy concerns.
For these reasons, we conclude that restricting the import of Russian munitions
to certain classes of firearms and ammunition is a legitimate use of the President’s
authority under the AECA as delegated to the Secretaries of Treasury and State.
WALTER DELLINGER
A ssistant Attorney General
Office o f Legal Counsel
52