The Memorandum invites the Secretary to devise more open-minded uses of presidential powers to restrict, regulate, void, or prohibit Chinese investments in the United States beyond those contained in the Defense Production Act, 50 USC § 2170 (DPA) and its implementing CFIUS regulations, 31 CFR Part 800. While nothing has yet been officially announced, the Trump administration may be exploring its options for “executive branch action” under the broad authorities of the International Emergency Economic Powers Act, 50 USC 1701-1707 (IEEPA), which could be used to support presidential action affecting Chinese investments within the United States. How Broad Is IEEPA?

ertain financial assistance) on foreign persons and entities named in the report. Id. at § 2(b). At least five sanctions are to be chosen from a long list of economic measures that are available to prevent, stop, and penalize the illegal conduct. Most important, perhaps, is that the property of a foreign entity or person can effectively be frozen by United States authorities. Id. at § 2(b)(1)(A) (entities), Id. at § 2(b)(2)(A)(individuals). Individuals may also lose their visas and be ineligible for admission into the United States. Id. at § 2(b)(2)(B). PAIPA permits the President to waive sanctions when such waiver is in the national interest. Id. at § 2(c). Moreover, PAIPA itself lists a number of exceptions for both entities and individuals based on treaties and commitments to other countries, as well as their value, contributions, and/or ties to the United States. Id. at § 2(e).PAIPA grounds the President’s authority to act in the International Economic Emergency Act, specifically 50 U.S. Code §§ 1701-1705, which permits the President during times of national emergency and war to exercise powers to control a range of economic activity and to pass regulations to facilitate this regulation. PAIPA explicitly references § 1705, which contains significant civil and criminal penalties for persons and entities who violate the terms of the economic sanctions or conspire to do so. However, 50 U.S. Code § 1701(b) limits the use of authority granted to the President by § 1702 (and hence §§ 1703-1705) to deal with an unusual and extraordinary threat with “respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose.” PAIPA, however, includes all of the powers under the International Economic Emergency Act, as well as its own delegation of additional powers, even if there is no national emergency.Interestingly, PAIPA contains no provision for judicial review before or after the President adds a foreign entity or person to the lis

This broad definition gives DoD a significant amount of discretion. The operative part of this section authorizes the President, once the list is published, to exercise powers under the International Emergency Economic Powers Act of 1977, 50 USC. § 1701 et seq. (IEEPA) to regulate or prohibit certain commercial activity within the United States involving one or more of the listed entities. So, in theory, the publication of this list could potentially lay the groundwork for the imposition of sanctions that would prohibit US persons from engaging in most US commercial activity with such entities.

In allowing the Government’s case to move forward, Judge Berman found that prosecutors had sufficiently alleged that Mr. Zarrab and his co-conspirators had engaged in business transactions where relevant information regarding sanctioned entities was withheld from U.S. banks in a deceitful manner that made it more difficult for both the banks to comply with the law and OFAC to carry out its lawful functions.II. Conspiracy to violate the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1706, and the Iranian Transactions and Sanctions Regulations (“ITSR”), 31 C.F.R. §§ 560.202-205.The second sanctions charge leveled against Mr. Zarrab alleged that he and his associates conspired to violate the IEEPA and the ITSR.

In allowing the Government’s case to move forward, Judge Berman found that prosecutors had sufficiently alleged that Mr. Zarrab and his co-conspirators had engaged in business transactions where relevant information regarding sanctioned entities was withheld from U.S. banks in a deceitful manner that made it more difficult for both the banks to comply with the law and OFAC to carry out its lawful functions.II. Conspiracy to violate the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1706, and the Iranian Transactions and Sanctions Regulations (“ITSR”), 31 C.F.R. §§ 560.202-205.The second sanctions charge leveled against Mr. Zarrab alleged that he and his associates conspired to violate the IEEPA and the ITSR.

y other duties, fees, exactions and charges applicable to the covered imports, such as duties imposed pursuant to Section 301 of the Tariff Act of 1974. There is no apparent mechanism for applying for exclusions to the tariffs.On Feb. 3, 2025, Mexican President Claudia Sheinbaum and Canadian Prime Minister Justin Trudeau announced via social media (and the White House confirmed) that Mexico, Canada and the U.S. had agreed to a 30-day pause in the imposition of tariffs.These duties took effect on Chinese goods or after 12:01 a.m. ET on Feb. 4, 2025. Once the U.S. tariffs took effect, China announced retaliatory tariffs, effective Feb. 10, 2025, and initiated legal action.President Donald Trump on Feb. 1, 2025, issued three executive orders (Tariff EOs) imposing additional duties on Canada, Mexico and China pursuant to the International Emergency Economic Powers Act (collectively, IEEPA Duties).The legal foundation for the IEEPA Duties is the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), applied in reference to the National Emergencies Act (50 U.S.C. 1601 et seq.) and Proclamation 10886 of Jan. 20, 2025 (Declaring a National Emergency at the Southern Border). The legal rationale for the permissibility of these tariffs under the United States-Mexico-Canada Agreement (USMCA) appears to be based upon the "essential security" provisions.Duty drawback and duty-free de minimis treatment are not available to goods subject to the Tariff EOs. Additionally, goods subject to the Tariff EOs must be admitted to Foreign Trade Zones (FTZs) under "privileged foreign status," unless they qualify for "domestic status."Pursuant to the Tariff EOs, prior to removing the tariffs, the U.S. Department of Homeland Security (DHS) Secretary must inform the president that the respective governments have taken "adequate steps," and the president must determine that they have taken "sufficient action," to alleviate the crises. It should be noted that President Trump has historically used

ural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals, as defined by 30 U.S.C § 1606(a)(3).” This definition may be supplemented in a forthcoming Federal Register notice to be published by U.S. Customs and Border Protection (“U.S. Customs”) that will provide additional details on entry procedures. Notably, the IEEPA tariffs will apply on top of existing AD/CVD, Section 301 and 232, and other customs duties.IEEPA, which is one of 117 emergency statutes enacted by Congress in 1977 under the National Emergencies Act (“NEA”), gives the President authority to “investigate, regulate, or prohibit” a range of economic activity to address any “unusual or extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” 50 U.S.C § 1701. The President declared a national emergency on inauguration day based on the threat of illegal aliens and illicit drugs. See Proclamation 10866 (“Declaring a National Emergency at the Southern Border”). Saturday’s EO relied on the NEA to “expand the scope of the national emergency . . . to cover the threat to the safety and security of Americans, including the public health crisis of deaths due to the use of fentanyl and other illicit drugs, and the failure of Canada to do more to arrest, seize, detain, or otherwise intercept” those responsible. The EO describes Canada’s actions as “an unusual and extraordinary threat.”These IEEPA tariffs apply to all goods entered for consumption, withdrawn from a warehouse for consumption, on or after midnight on February 4. Goods in transit as of February 1 can avoid the tariffs with a CBP importer certification. The forthcoming Federal Register notice from U.S. Customs will specify what changes are necessary to the Harmonized Tariff Schedule, whi

t and other trade agreements.The “Section 321”de minimistariff exemption for low-value imports will not apply to imports covered by the new duties.Implementation TimingIn general, the new duties on Chinese imports are to apply as of today, February 4, 2025. President Trump informally announced that the new duties on Mexican and Canadian imports are suspended for a month. Subject to an importer certification requirement, shipments that were in transit to the United States before February 1 will be exempt from the new duties.Covered MerchandiseThe new duties are to generally cover all merchandise that originated in Canada, Mexico or China. The new duties will not apply to imports of items that are exempt from IEEPA (see below), such as certain donations, personal luggage and informational materials.Duties’ Legal Authority and Potential VulnerabilityThe President is implementing the new duties through executive orders purportedly authorized by International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06 (IEEPA). Subject to conditions, IEEPA authorizes the President to regulate importation of any property in which any foreign country or a national thereof has an interest.IEEPA authorities may be exercised only to “deal with an[] unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” Here, the President has declared an emergency with respect to the U.S. southern and northern borders and the three countries’ alleged failure to prevent drug-related activity that affects the United States.No President has purported to rely on IEEPA authority to impose duties on imports, and this action is likely to meet one or more court challenges in the near future. At the same time, in 1971, President Nixon declared a national emergency regarding adverse U.S. balance of payments circumstances and imposed a

e rapid pace than under the Biden Administration as the new administration continues their efforts to conduct deportations, foreign trade negotiations and other foreign policy priorities.16 Adding to the uncertainty, it is expected that the Trump Administration will challenge the legal limits of the executive branch's authority, including foreign policy priorities that arguably can be perceived as a "threat…to the national security, foreign policy, or economy of the United States."U.S. persons and foreign persons, including financial institutions and other persons who conduct cross-border business with a nexus to Latin America, should closely monitor ongoing advances. Holland & Knight's Financial Services Team and International Trade Group have vast experience with U.S. export control, anti-boycotting and sanctions laws, including the sanctions administered by the U.S. Department of the Treasury's Office of Foreign Assets Control.For more information, please contact the authors.Notes1 50 U.S.C. § 1701(a).2 See Congressional Research Service Insight, The International Emergency Economic Powers Act (IEEPA) and Tariffs: Historical Background and Key Issues, CRS report no. IN11129 (Washington, DC: Congressional Research Service, 2019).3Id.4 See Press Statement from Secretary of State, Marco Rubio, Ending Illegal Immigration in the United States (Jan. 26, 2025).5Id.6 See White House Statement from the Press Secretary (Jan. 26, 2025).7Id.8Id.9 See U.S. Department of State Office of the Spokesperson, Secretary Rubio Authorizes Visa Restrictions on Colombian Government Officials and their Immediate Family Members (Jan. 26, 2025) (noting that "Secretary Rubio immediately ordered a suspension of visa issuance at the U.S. Embassy Bogota consular section.").10 See Reuters, "Colombian planes carrying US deportees arrive in Bogota after Trump-Petro row" (Jan. 28, 2025).11 See Reuters, Phil Steward and Diego Ore, "Mexico refuses US military flight deporting migrants, sources say" (Jan. 25, 2025).12 S

mpose tariffs is not inherent but derived, requiring at least some level of adherence to the statutory parameters set.III. What are the Primary Legislative Authorities for Tariffs?Tariffs in the United States are primarily implemented under Section 301 of the Trade Act of 1974 or Section 232 of the Trade Expansion Act of 1962. These statutes are well-defined and have been widely utilized by various Presidents, including President Trump and President Biden, to impose tariffs. However, President Trump invoked the International Emergency Economic Powers Act (“IEEPA”) as the legal foundation for imposing the referenced tariffs against Canada, Mexico, and China. While legal experts generally concur that the IEEPA provides authority for such measures, it is believed that this statute has not previously been applied in this specific context (though its predecessor, the Trading with the Enemy Act of 1917, was used to impose tariffs).a. The International Emergency Economic Powers ActThe IEEPA (50 U.S.C. §§ 1701-1707) authorizes the President to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” Broadly, the IEEPA empowers the President, pursuant to a national emergency declared for this specific purpose, to “investigate, regulate, or prohibit,” “foreign exchange transactions, transfers of credit, transfers of securities, payments, and [ take…] specified actions relating to property in which a foreign country or person has interest—freezing assets, blocking property and interests in property, prohibiting U.S. persons from entering into transactions related to frozen assets and blocked property, and in some instances denying entry into the United States.”i. The IEEPA under President TrumpAs stated, President Trump imposed the blanket tariffs against Canada, Mexico, and China