Judge, Jury, and Executioner: Why Private Parties Have Standing to Challenge an Executive Order That Prohibits ICTS Transactions with Foreign Adversaries

On May 15, 2019, President Donald Trump, invoking his constitutional executive and statutory emergency powers, signed Executive Order 13,873, which prohibits U.S. persons from conducting information and communications technology and services (ICTS) transactions with foreign adversaries. Though the executive branch has refrained from publicly identifying countries or entities as foreign adversaries under the Executive Order, observers agree that the Executive Order’s main targets are China and telecommunications companies, namely Huawei, that threaten American national security and competitiveness in the race to provide the lion’s share of critical infrastructure to support the world’s growing 5G network. Executive Order 13,873 raises several concerns—both broad and specifically related to the Trump Administration. In general, courts have struggled to clearly define the legal status of executive orders or the courts’ ability to review executive orders. The quasi-legislative nature of executive orders creates tension with the separation of powers principle and contributes to courts’ challenges in addressing concerns that they raise. The Trump Administration has continued a concerning trend of pursuing policy objectives through executive orders rather than through Congress in the current era of legislative gridlock. This Administration has also weaponized trade policy to accomplish national security objectives and implement a protectionist strategy that threatens the U.S.’s position as the world’s leading economy. This Comment argues that affected parties have standing to challenge the government’s enforcement of this Executive Order against them in Article III courts in defense of their due process rights, despite language in the Order that may suggest it is exempt from judicial review. By analogizing the new interagency committee tasked with implementing Executive Order 13,873 to the Committee on Foreign Investment in the United States, this Comment uses the precedent the D.C. Circuit established in Ralls Corp. v. CFIUS to demonstrate that hypothetical U.S. person plaintiffs, who may be involved in ICTS transactions with foreign adversaries, have a due process right to notice of, access to, and the opportunity to rebut the unclassified information the government uses to justify enforcement action against them under Executive Order 13,873. This Comment concludes by synthesizing the arguments of important stakeholders who have submitted public comments on the proposed rule for enforcing the Executive Order and providing policy recommendations to improve the efficacy and fairness of the implementing regulations