Is “Unusual and Extraordinary Threat” Language Really a Pro Forma Part of Executive Orders?

David Smilde

In the run up to the Summit of the Americas in early April, the Obama Administration made some progress in defusing regional dismay at the March 9 executive order implementing targeted sanctions on Venezuelan leaders. The executive order declared a state of emergency with respect to this country based on its posing an “unusual and extraordinary threat to the national security and foreign policy of the United States.”

In an interview with Spanish news agency EFE President Obama said “we don’t believe that Venezuela is a threat to the United States and the United States is not a threat to the government of Venezuela.”

This echoed the comments of Whitehouse aide Ben Rhodes in an on-the-record conference call a couple of days before.

“The wording, which got a lot of attention, is completely pro forma. This is the language that we use in executive orders around the world. So the United States does not believe that Venezuela poses some threat to our national security. We, frankly, just have a framework for how we formalize these executive orders.”

That is true, but a little imprecise. This language is not part all executive orders (see a list of executive orders on the Whitehouse webpage). It is only part of executive orders that implement the “International Emergency Economic Powers Act” (IEEPA). It is included because the IEEPA requires it.  

Why?

The IEEPA of 1977 is actually a restriction on executive power. By declaring a national emergency a president gains special powers. The IEEPA tries to regulate and limit these powers on behalf of Congress. Sec.204.B says that to use these powers the president needs to report to Congress:

1) The circumstances which necessitate such exercise of authority;

2) Why the president believes those circumstances constitute an unusual and extraordinary threat, which has its source in whole or substantial part outside of the United States, to the national security, foreign policy, or economy of the United States

If Venezuela is not a threat to the United States, what is the justification for the sanctions? Under the law, the Obama administration needs to explain just how Venezuela is “an unusual and extraordinary threat.” If it cannot, the executive order needs to be withdrawn.

Just to be clear, my argument is not that the Obama administration actually thinks Venezuela is a national security threat and is now denying it. Rather, I am arguing that existence of a threat to the US is a requirement for implementation of the IEEPA. If there is no threat, there is no justification for its use.

It is not a trivial point. A year or two down the road, when policy-makers and journalists have forgotten the particulars of March-April 2015, the fact that the US declared Venezuela a national security threat could be used to pernicious effect.