The Russia Sanctions Review Act of 2017, which may or may not get vetoed by the White House, has now passed both the House and the Senate as sections 215 and 216 of the euphoniously named Countering America’s Adversaries Through Sanctions Act ( or the “CATS Act”)(seriously?). Section 216 attempts to circumscribe the authority of the White House to alter sanctions on Russia without a sign-off by Congress. I doubt anyone will be surprised to learn that the bill is a confusing mess that likely will not accomplish its purpose, unless its purpose is simply to tell voters that Congress means business, very serious business.
The legislation requires the President to file a report with Congress before he acts “to terminate” Russia sanctions, acts “to waive the application” of the sanctions against specific persons or takes “a licensing action that significantly alters United States’ foreign policy with regard to the Russian Federation.” Depending on whether this action is intended to significantly alter U.S foreign policy with respect to Russia, the legislation sets forth a 30- or 60-day review period by Congress — 30 days if no; 60 days if yes. The proposed action may not take effect within the review period unless specifically authorized by a joint resolution of both house of Congress.
Alert readers (or basically anyone other than members of Congress) will immediately see the hole in this scheme — a hole big enough to fire a Nork No-Dong missile through. That hole is the general license, a concept which dates back at least to the general license for Cuba travel issued by the Carter administration in 1977 (i.e. seven years before Mark Zuckerberg was even born). A “general license” with respect to Russia sanctions is definitely not a “termination” of them. And whether a particular general license “significantly alters United States’ foreign policy” with regard to Russia, well that’s a judgment call on which reasonable people could always disagree and on which no court will ever venture an opinion.
The Federal Register notice granting the broad general license to engage in activities otherwise prohibited by Russia sanctions will simply note that in the considered opinion of OFAC the general license, which OFAC reserves the right to withdraw at any time, does not significantly alter U.S. foreign policy towards Russia. And if Congress disagrees with that administrative determination, what is it going to do? Arrest OFAC? Scream and holler on C-SPAN? No, it will do what it always could have done before and without passing the CATS Act — pass a law reversing the general license.
Your tax dollars at work.
Copyright © 2017 Clif Burns. All Rights Reserved. (No republication, syndication or use permitted without my consent.)