In a move that reveals massive Congressional and Executive Branch disregard for their “Constitution,” the U.S. Congress March 17 passed what in glib DC-speak is a bill to “suspend normal trade relations treatment” with Russia and Belarus, and the legislation now moves to the sure-to-pass-it Senate.
By its vague language, the bill arguably hands any president unrestricted statutory authority to "sanction" virtually anyone, anywhere, for any reason, without any trial, and Congressman Thomas Massie (R-KY) sounded the alarm via two important March 17 tweets, offering screencaps, and writing:
This was slipped into the Russian sanctions bill on pages 19,20,21. It gives the President broad authority to sanction virtually anyone, anywhere in the world, whether they are connected to Russia or not. Interventionists at the State Department are doing the happy dance now.
But, is this true?
Investigation leads us, first, to an Executive Order that Biden issued, a year ago in April that pumped the “Russian Election Meddling” narrative and, contrary to the Constitution, “Declared a National Emergency,” then claimed, among MANY things, the power to block “transferal, payment, or movement of the property (including financial) and interests in property of any person” whom the Treasury Secretary claimed:
...to operate or have operated in the technology sector or the defense and related materiel sector of the Russian Federation economy, or any other sector of the Russian Federation economy…
Or…
...to be responsible for or complicit in, or to have directly or indirectly engaged or attempted to engage in, any of the following for or on behalf of, or for the benefit of, directly or indirectly, the Government of the Russian Federation...
... and then the E.O. strikes off a lengthy list of behaviors it will cite as punishable. The scope of the E.O. is broad, and the idea of the Executive Branch engaging unilaterally in extrajudicial punishment is insane, going far beyond ties to Russia and far beyond the range of this article.
But how does this new "Sanctions Bill" slip in some of that Biden E.O.?
To answer that, we need to know that the new bill amends key sections of the 2016 Magnitsky Act, which, itself, is chock-full of constitutionally dubious provisions. For example, the original act reads, in part:
The President may impose the sanctions described in subsection (b) with respect to any foreign person the President determines—
Hold on.
The Constitution doesn’t grant a U.S. President that power. Punishment of people is supposed to be handled in courts, according to the Bill of Rights. And the phrase “with respect to any foreign person” is expansively vague. Why not say, “may impose sanctions on any foreign person”? That would be bad enough because it offers the foreigner no habeas corpus and no trial, as required in U.S. jurisprudence and reiterated by the SCOTUS in the Hamdan v Rumsfeld decision, circa 2006. But this is even less specific, and makes one wonder if it could be applied to an American.
The 2016 Magnitsky Act goes on to itemize some (but not all) of the possible crimes it lets the president “determine” were committed “with respect to” a foreigner, including torture, extrajudicial killings (this, despite the fact that the Magnitsky Act lets a President exercise his OWN EXTRAJUDICIAL POWER TO SANCTION), and more.
It also lets a President “sanction” (i.e. seize assets of, block trade with others) “a government official, or a senior associate of such an official, that is responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption…” and/or a person who “has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of” a government agent whom they say has committed any of the many wrongs it lists in the act.
The new, 2021 Sanctions Bill broadens the scope, allowing a U.S. president to target virtually anyone:
…with respect to any foreign person that the President determines, based on credible information— (1) is responsible for or complicit in, or has directly or indirectly engaged in, serious human rights abuse…
Again, no trial, no Bill of Rights. And now, it’s “directly or indirectly.” And again, does that strictly pertain to “foreign persons?” In fact, the new bill lets a president sanction "a current or former government official, or a person acting for or on behalf of such an official, who is responsible for or complicit in, or has directly or indirectly engaged in” what the President doesn't like.
It sure looks as if this isn’t about just foreign people. It looks like it’s about anyone they link to a foreign person.
Indeed, the new Sanctions power bill they're sending to a vote in the Senate would target anyone who:
…has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of— (A) an activity (pinpointed by the President) that is conducted by a foreign person; (B) a person whose property and interests in property are blocked pursuant to this section; or (C) an entity, including a government entity, that has engaged in, or whose members have engaged in, an activity (again, targeted by the President...) conducted by a foreign person; or is owned or controlled by, or has acted or been purported to act for or on behalf of, directly or indirectly, a person whose property and interests in property are blocked pursuant to this section.
That last portion is the biggest red flag, opening it up to anyone engaging in direct or indirect trade or action "on behalf" of a foreign person.
Ironically, both versions would apply to Hunter Biden at Burisma, and the new bill would apply to anyone who has done business with Hunter, including his lawyers or a person who delivers a letter or message for him, because it includes anyone "acting for or on behalf of " and that definition is left up to the arbitrary determination of the President.
This is what the Congress is making statutory, not just allowing to exist in a so-called "Executive Order" that any future president might repeal.
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But the U.S. Constitution doesn’t allow internal or external “sanctions” in the first place. The only enumerated powers even near the general “vicinity” of this topic pertain to Congress’ so-called power to levy tariffs against foreign goods (itself economically harmful to consumers, as James Bovard’s book, “The Fair Trade Fraud” explains) and the “power” to impose excise taxes on internally sold goods.
It cannot “block” trade during peacetime, regardless of the media-hyped rationale. To do so is an act of aggression, a threat, and it has no place in a statute or an Executive Order.
In his second tweet, Thomas Massie noted that only seven others opposed this foolishness.
That’s frightening, and more people should be informed about it.
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(Cover Photo: Gage Skidmore)