Do the Fifth and Sixth Amendments Prohibit the Designation of U.S. Persons Under the International Emergency Economic Powers Act?

Abstract

The International Emergency Economic Powers Act (IEEPA) empowers the executive branch to designate organizations and individuals “Specially Designated Global Terrorists.” Though IEEPA designation is used against both domestic and foreign entities, its consequences are most severe within the United States. The designee’s assets are frozen and transacting with the designee becomes a federal felony. For an American organization, IEEPA designation is a death sentence. For an Amercan individual, it amounts to house arrest. This Article analyzes IEEPA using the Mendoza-Martinez test and concludes that IEEPA designation of U.S. persons violates the Fifth and Sixth Amendments by imposing punishment without providing the required procedural protections. This Article offers a new framework for evaluating preventive counterterrorism policies and provides clarity to a notoriously unclear area of our constitutional law—the jurisprudence of the civil/criminal divide.