Since Russia started its brutal invasion of Ukraine, There has been a global attempt to find legal ways to freeze and take and utilize in aiding Ukraine the assets belonging to Vladimir Putin’s oligarchs and those of Russia itself. In a piece for The New York Times last month, my co-author Jeremy Lewin and I pointed to a solution that could be the President’s application of the power Congress gave in the International Economic Emergency Powers Act of 1977 (IEEPA) to transfer to Ukraine the billions of dollars of Russian reserves of the Government’s currency that are already frozen by American banks as well as at the Federal Reserve. The need to pursue this option has increased as the war intensifies in the region. As we anticipated in the last month, opposition to the possibility of funding further Ukraine assistance via American taxpayers is beginning to grow. So I was pleased to witness the Secretary of State, Antony Blinken, declare just a few weeks ago that the Biden administration is looking at the options that Lewin and I had proposed and observed a growing trend within Europe to implement similar measures in recognition of the possibility that a joint NATO-G7 initiative could open up the equivalent of $300 billion of frozen Russian funds to fund the reconstruction and defence of Ukraine. However, the administration is taking steps to take over the assets of private Russian Oligarchs, a decision that was endorsed by a bipartisan resolution in Congress.

The issue continues to gain momentum with commentators and scholars. Some commentators have proposed methods to call for a new law from Congress to take over Russian foreign currency sovereign assets. In Foreign Affairs, University of Virginia historian Phillip Zelikow and M.I.T. economist Simon Johnson have put forth an entirely different idea to reuse the assets that are frozen Russian state assets which rely on international legal frameworks. This proposal has led to an exchange of words within Lawfare among Zelikow and University of Virginia international law expert Paul Stephan about whether Russia’s inflicting several flagrant violations of international law. In contrast, the prosecution of its illegal invasion warrants the efforts of officials from the United States and others to remove Russian funds to help its Ukrainian victims right now.

These exchanges have been informative, but they do not relate to my proposal to The New York Times. In my plan, I am particularly concerned about confiscating the assets of Russia’s central bank and the currency reserves currently stored within the United States. While I am also in favour of seizing assets belonging to oligarchs, this could require years of complicated legal proceedings and won’t be enough to deliver enough funds to meet the growing demands of Ukraine and, even less severely, penalize Russia’s Russian state and prevent it from committing more of war crimes that are blatantly committing. In the debate between Stephan and Zelikow regarding whether international legal doctrines permit the seizure of the sovereign assets of Russia to repair the damage caused by its willful disregard for the essential tenets of this legal system, I believe Zelikow has the upper hand in the arguments. However, Stephan is one of the authors who argue that these seizures “manifestly violate international law” and has acknowledged it is “if Congress and the executive adopt with sufficient clarity and intent an unconstitutionally sound law that violates lawful United States’ international legal obligations, U.S. courts must accept that law as legitimate.”

There is no evidence that Zelikow or Stephan, or any other expert in the field of the law suggests an argument that any non-U.S. judiciary is competent or can apply against government officials of the U.S. government any potential international law-related claims against the confiscation of billions in previously in the frozen Russian government assets. Therefore, the most crucial issue is whether proposals similar to mine will be able to overcome any hurdles in the context of United States law.

Stephan, who was responding to my suggestion and Zelikow’s proposal, raised questions about the legality of these proposals under Constitutional and domestic law. While I am aware of no other person who has expressed constitutional doubts, a few other commentators than Stephan has expressed doubt of statutory reasons, either questioning whether the provision of IEEPA on which I’ve used is legally valid. The possibility that the president Biden will need to use a similar condition that was enacted by Congress in the Patriot Act in the wake of the 9/11 attacks (a law that is only applicable in the event of “attacked from a different nation or foreign citizens.”) The intention here is to answer any legal objections in the domestic law.

Stephan states that Lewin and I and those who agree with our views “get legal doctrines that are outdated” and “blow-by legal obstacles with speed and fury,” but he does not address the language of the statute on which we are based our decisions. Maybe as an expert in international law, Stephan thinks we’re not actually relying on the domestic law but, in reality, relying, which in his opinion, unjustly, on international law and customs. If this is the case, he’s mistaken. We depend only on IEEPA, an Act of Congress passed in 1977 and subsequently signed into law by President Obama. However much stability it may bring to international affairs, and something I am concerned about. Stephan exaggerates that the set of principles commonly referred to by the name of “international law” is not a delegated power over to an American president, nor does it override the authority granted to the President by our legislative body.

The language of IEEPA is unambiguous 50 U.S.C. SS1702(a)(1)(b) clarifies that “The President could . . . Direct and compel, annul or prohibit . . . Any . . . Holding the property, use, transfer or exercising. . . of . . . any power, right or privilege concerning. . . any property that is located in a foreign country . . . Does anyone have any desire” to declare an emergency to cause IEEPA the IEEPA, which President Biden has done?

In addition to noting the literal nature of that text, Stephan suggests that the notion of taking Congress at its word could result in the use of the law to extend past its “goal of reducing the powers which presidents have had before World War I, including an expansive confiscation power.” This type of argument flies in opposition to the current Supreme Court’s constant insisting that the legislation Congress applies follows its usual meaning, regardless of what Congress might have planned or expected in the past. This was the underlying message that the Court conveyed in its recently affirmed decision in Bostock and Co. v. Clayton County, treating the discrimination of trans and gay people as “discrimination . . . because of sexuality” to be used in the context for purposes of Title VII of the Civil Rights Act of 1964 a majority decided on 6-3. For sure, this strict textual approach has been one that scholars who are more tolerant than me have criticized at times as being too literal and not sufficiently aware of legislative intent. However, in a society brimming with hardballers and set amid desperate strategic and humanitarian needs and a need for unilateral disarmament methodologically isn’t all that convincing. The Biden administration shouldn’t put the other hand in front of the other. In practical terms, if any case involving this issue goes before the Supreme Court at present, the Supreme Court, there is an overwhelming likelihood that all nine Justices, who Justice Kagan famously remarked are “all textualists right now,” would start and conclude their examination by referring to the text of the law as it was implemented.

Stephan is next responding to the assertion that Lewin and I are unable to claim “the president has implicit powers in the Constitution to seize foreign assets, even in the absence of the war zone,” perhaps ancillary to “an exclusive authority of the president to recognize the foreign governments of other states and make other decisions which are derived out of this authority.” Even though these “implied powers” aren’t fictitious, especially when viewed in the expansive knowledge of Article II embodied in recent Supreme Court jurisprudence, nothing in our proposed legislation relies on this kind of understanding. As someone concerned about an unwieldy and the power of an imperial president, I would not advocate an argument based on this.

Stephan believes that the instances we mention “from the recent history”–of creating “frozen Venezuelan central bank assets accessible to rebel leader Juan Guaido” and of liquidating “around $7 billion of assets belonging to the defunct Afghan central bank” instead of giving them to the Taliban and reserving half of them to fund Afghan human rights efforts and the other half for court judgements in lawsuits brought by the family members of those killed or wounded in the September. 11. attacks”These are “proof of the legitimacy of [our] plan.” We haven’t provided those instances to provide “proof” that is contrary to what the clear language of IEEPA can show, and we provided them only to refute the notion that the provision of “hostile funding from the government for various human and remedial reasons” could be “radical” and “unprecedented” as well as “a massive expansion of the president’s authority at the behest of Mr Biden’s request.” In the sense that one is hesitant to believe that Congress as its word because Congress is not able to be thought to have granted to President Biden any new authority and without precedent and precedent, we were trying to offer any guarantee that the actual circumstances of such a presidential takeover could offer. Whether a sovereign’s confiscated assets are transferred to a successor government or a different ruler does not affect the amount of authority that such confiscation confers. It would be a mistake–given the apparent dangers of promoting changes to the Government of a nation with the potential to demolish the human race utilizing its thermonuclear arsenal to base our proposal for restructuring Russia’s sovereign assets on an imagined power of the President to overthrow the current regime that is in control in Moscow. Put that we did not do such a thing.

In the same vein, Stephan observes that “[w]ere the president Biden to acknowledge the new government of Russia maybe that is headed by Aleksey Navalny, and grant him the power to sell the assets that were frozen,” the decision from 2014’s Supreme Court decision, Zivitofsky v. Kerry, “might apply.” Stephan writes: “But there’s no evidence that he’s been able to do that, so it’s not.” However, the argument we’re presenting does not invoke the presidential power at the heart of Zivitofsky, which is the ability to decide who legitimately is the President of a particular ancient city or nation. We weren’t so foolish as to base our pro-Ukraine argument on any possible Biden move to demand the downfall of the Putin regime, no matter how much it may merit that fate.

Then, Stephan argues that, while a freeze of property owned by foreigners “destroys the value of assets through criminalizing any attempt to deal with them or gain any benefit from them,” what a “freeze does not accomplish is . . . Change ownership.” However, I’ve never said that the freeze in itself “changes ownership”,–only that the broad language permits the President, after making the required emergency determination, to defrost the frozen funds and apply them to help Ukraine instead of letting them sit idle, possibly for the rest of their lives.

What do you think of Stephan’s claim that the amendment of 2001 to IEEPA by expressly conferring a power “confiscate” in addition to “vest … the title” over the money in exchange for the purpose in question in a way, erases the energy that was previously available under the Patriot Act IEEPA? This argument is also unproven. It violates the established constitutional rule that grants to a person by Congress, such as the IEEPA grant to the President the authority to “direct and force” the “transferor removal” and “exportation” from frozen foreign money – can be modified or repealed only through an explicit legislative act of Congress, not by simple implication.

Stephan’s argument and the colleagues he quotes to support it argue that Congress could never say with greater clarity what is already stated in a more high level of generality. Thus it is true that what Congress clearly stated in 1977 is no longer able to be read in the light of its fundamental meaning, even though it had been initially that way. However, any suggestion of this kind is in contradiction with the notion that “Congress states what it means and does what it states” and, as per Article I of the Constitution, it is what Congress adopts and what the president signs, not what Congress could have hoped or planned to achieve that counts as law. This contradicts the long history of instances where Congress has repeatedly reacted with caution to areas that previous Congresses have covered but with minor detail to clarify what could have been missed previously.

Furthermore, it is true that, even if one was to keep one’s eyes on the supposed motives or beliefs, the immediate attention of legislators on the Hill after 9/11 was to hold those responsible for the day’s terror accountable in two ways: by pursuing them militarily and thereby that Authorization for the Use of Military Force and also by claiming ownership of any personal or tangible property they owned. That could be the reason that is the reason for the Patriot Act’s addition to IEEPA of SS1702(a)(1)(c) to allow the president “when it is determined that the United States is engaged in conflict or is attacked by a foreign nation or foreign nationals” for example, to “confiscate the property of any person . . . of any foreigner . . . organisation or . . . The country he believes has committed, authorized, assisted or participated in these (activities),” at which point “all rights, titles and all interest in the property confiscated will pass to . . . subject to such conditions and terms that the President can prescribe . . . for the benefit of and in the interest to in the interest of and benefiting the United States . . . .”

For sure, the language grants an additional and less specific authority of “confiscate” as well as “vest title” in foreign “property.” However, it’s not necessarily the case the way Stephan and others have been quick to conclude that SS1702(a)(1)(b) should be read in the year 2001 and after that and not be used to accomplish what it says, namely allow the President to “direct and force” to force the “transfer” as well as the “use” of frozen foreign currencies inside the U.S. Beyond the general rules of statutory interpretation, which support this conclusion, one key aspect that some commentators such as Stephan ignore is the fact that the power granted to the Patriot Act amendment addressed “property” in a way which may not have encompassed money. In this sense, when we talk about “property,” the critical issue isn’t about who is the one with “title” in it, but the person who decides its use and use, which is something that the definition in SS1702(a)(1)(b) already addresses. There is a lot of talk about being able to claim “title” in a specific vehicle or rare coin or that a bank has “title” in the home where they reside, but seldom, if ever, is it mentioned that they could claim “title” in the particular dollars they carry within their purses. Regarding personal and tangible property, which includes physical and natural assets, they are known as “vesting. “vesting . . . title” is an entirely different and more complicated legal system and one that Congress felt the need to establish, and stating that the President can unilaterally transfer title in a separate entity than the person or the entity which initially had ownership of the asset. This type of property, unlike currencies, cannot be fungible and is usually not subject to greater control by the Government than a sovereign currency, such as U.S. dollars, which is, as was the case in Supreme Court noted in the 1935 Gold Devaluation Cases is an invention of the Government and is, even when held privately is subject to more control by the Government than other assets.

Stephan also fails to understand our contention regarding the Supreme Court’s historic ruling of 1981 regarding the Iran hostage crisis, Dames & Moore v. Regan, establishes that IEEPA confers on the president “‘broad power” to take action during times of national emergencies.” He thinks we’re using Dames & Moore to establish an inherent presidential “capacity that, in the absence of authorization or objection from Congress and to allow Iran to transfer a portion of its assets that are frozen to an international tribunal for claims for disposal by that tribunal in accordance with the provisions in the accord.” However, this is not the case. We depend in Dames & Moore solely for the Court’s agreement with the Government as well as two circuits which state that the “plain text of the [IEEPA]specifically authorized” for the President to “compel the transfer and removal” of the blocked assets in addition the President to “nullify some rights or privileges that were acquired by the case of these assets” for the purpose of making this transfer feasible.

Dames & Moore expressly rejected arguments that the Court “should disregard the language in [SS1702(a)(1)(b)[SS1702(a)(1)(b)] since the study of its legislative background and the development of” similar and pre-existing statutory laws “reveals it was never designed to grant the President vast control to control the property of an overseas country during situations of national emergencies.” Instead, the Court is correct in its decision to “refuse[dto] take out of (subsection (b)[subsection (b)] any meanings of the words ‘transfer’ ‘compel’ or “nullify.’” Stephan rightly declares the case of Dames & Moore “was not about the executive’s exclusive power . . . Congress cannot override or restrict.” However, we cannot rely on this power.

Even if the passage in 2001 of an amendment to IEEPA is a way of reading the prior power granted in SS1702(a)(1)(b) less narrowly than the text should, it does not mean that the amendment would be in all cases, applies to it comes into force, would apply to “United States” is in effect . . . Has been victimized by a foreign state or foreign nation . . . ,” could not be considered by the President to be relevant to Russia. Stephan says it is true that Russia “has not “attacked” in any way against the United States as a matter of international law.” However, it’s not international law that decides the limits of the authority Congress granted to the President in the context of IEEPA and the Patriot Act amendment. It’s the domestic law of constitutional and statute-based construction. In that law, it’s up to the President to determine what constitutes Russia as a state that has “attacked” the United States within the meaning of the United States Code. President Biden made this decision in his executive order released in April. The order initiated all our sanctions currently in place against Russia and its state-connected oligarchs. The order identified Russian territorial incursions, including that of Ukraine, as being a component of Russia’s interconnected efforts to undermine the safety of the United States, by means such as “engag[ingin] and facilitating malicious cyber-enabled attacks towards and against the United States” and our crucial infrastructure, Government and private sector.

These cyberattacks were outlined by announcing the existing emergency caused by the global Russian aggression, and the illegal conflict against Ukraine is only one of the components. The law that governs them is the National Emergencies Act – or in the provisions of IEEPA, which states that the powers that it delegates over to the President “may be used to address any unique or extraordinary danger” for our “national security as well as foreign policy or economic system” which originates entirely or in part from outside and triggering what the President considers as a “national emergency”–that could mean the possibility of an expiration date to an assessment similar to the one that President Biden has made regarding past or ongoing Russian cyber-attacks against U.S. citizens. The United States.

So if President Biden was to use his Patriot Act amendment to IEEPA in the belief that Biden has concluded that Russia has “attacked” our country’s cyberspace, it is doubtful that the federal judiciary, which has been increasingly receptive to presidents’ decisions about facts in the field–and probably, in cyberspace, to take a sceptical stance towards any such decision and even to doubt the existence of an “attack by a foreign nation or foreign nation.”

Stephan then argues that the use of IEEPA as a result of one of the subsections (b) and subsection (c) could violate the principle that “[a]s it relates to Constitutional law, the taking of property can only be done through a due procedure and law.” The Fifth Amendment does indeed say that “private property” cannot “be used for public benefit and without compensation.” This is personal property. Not the publicly owned and, in essence, only sovereign, governmental property that Lewin me and Lewin wrote for The New York Times. However, even if it does not have a right to “just compensation”, shouldn’t the Russian Federation be at least entitled to “due procedure of law” if its frozen sovereign assets are confiscated? Actually, no. The language of the Fifth Amendment is quite specific regarding who is entitled to its protections. It states: “No person shall be . . . The person is deprived of life, liberty, or property without proper procedure or due process.” Since Russia is certainly not a “person” capable of being, in principle, in being “deprived of the right to life” or “liberty,” the principle that words used in a sequence will likely have similar significance strongly indicates that “property” is also not applicable to the Russian Government.

This isn’t an issue of factual nature. Republic of Argentina v. Westover was a 1992 Supreme Court decision involving specific Argentinian debt instruments enacted in a commercial context, declaring that a foreign government does not count as a “person” or is merely mentioned as a possibility in passing. It’s more an ordinary matter of terminology in the construction of an instrument by the great Chief Justice John Marshall wrote in 1819 that it was not a mystical document for lawyers “partak[ingthe complexity of a legal code which is hardly accepted by the human mind” but as a set concept that was intended to be “understood by the general public.”

So, I don’t have to argue any claim that the Russian Federation is a “person” in the Constitution of the Republic of Argentina or according to the rulings that are a part of the Second and District of Columbia Circuits. They are the two crucial ones in this legal sphere. You can point to any dictionary or how people generally speak. Ordinary people would consider Vladimir Putin, a monstrous individual, but no one would describe the Russian Government as a vile “person.” Therefore despite the highly-controversial declaration from the U.S. Supreme Court that privately-held corporations (the expression of their corporate owner) constitute “persons” for various reasons under the Constitution, I would like to insist on the fact that the state-owned entity Russian Federation is not.

However, even in the case that Russia can claim that it is a “person,” it wouldn’t mean that its “process”, which is their “due”, should be, according to what Stephan believes, be a legal process that takes the form of a federal court’s review of repurposing by the President of the sovereign assets of the country. Even ordinary flesh and blood people are entitled by law to have a judge, particularly in a crisis, such as an outbreak or massive wildfire. The Court must review the legality of property seizures intended to stop the effects of a rising disaster. And the circumstances surrounding Russia’s brutal military campaign against the civilian people of Ukraine are about as severe as anyone could imagine. An administrative process that includes an impartial factfinder is often sufficient for the purpose. It should not always precede the confiscation but could also, if circumstances permit, be conducted afterwards.

I’m not the type of person to slackly deny anyone access to the courts. However, I am not hesitant in arguing, at a minimum, under the federal Constitution that Russia does not have the right to the what Stephan says is “some type of judicial oversight if they are seized by the U.S. government seizes its property to be disposed of according to the presidential discretion.”

I haven’t even thought of filing a lawsuit against the Russian Federation. Stephan’s thorough examination of the Foreign Sovereign Immunities Act (FSIA) in his analysis of asset seizures does not alter any of the arguments I offer. Stephan admits that he is “obviously right”, in my opinion. The immunity recognised in this act protects foreign sovereigns “from the authority of courts” and not from executive actions that hinder the transfer of assets of foreign rulers or even freeze the assets. Stephan claims the idea that “some form protection protects the properties of a central bank owned by a sovereign from international law against confiscation, and not freezing by the state in which they’re located” and believes that it is “clear” that this “immunity is not dependent upon the existence or absence of a judicial process and is therefore independent of the sovereign immunity” I’ve talked about. He admits that even assuming that the existence of some “international legal immunity” exists, it has a “scope . . . It is not clear” since “outside of war states aren’t regularly engaging in this” and claims it is because “the lack of seizure in periods of peace is a loud signal.” The author is perplexed by the notion that the lawless actions of Russia wouldn’t be enough to overturn any unclear immunity, based on the assumption that states don’t seem to be “in routine” of offering assistance to the victims of such aggression, which has been virtually unheard of in the years since World War II. Even if the rule of foreign sovereign immunity that is not the one codified in FSIA could be used to contest executive actions like the ones I’ve proposed, It is clear that like in the case of the Supreme Court held in Bank Markazi, also known as Central Bank of Iran v. Peterson, that Congress may revoke sovereign immunity of foreign states at any time. The IEEPA’s expressive power to grant the president authority to transfer and cancel the assets of sovereign nations over sovereign immunity. To think otherwise could result in the absurd conclusion that, even though Congress wrote a statute explicitly giving the President the authority, in the subsections (b) (b) and (c) to block and seize foreign assets in the real sense, it was the power was almost entirely removed by any sovereign immunity of foreign governments was partially codified in the FSIA.

In the end, if Russia decides to file a lawsuit against the United States in an American court to recover its funds, there will be ample time to think through the arguments that would be presented in support as well as against any decision made by our Government to waive its sovereign immunity to allow such a case to proceed. Because it is true, as Stephan correctly states, the Russian “invasion is a scourge and the atrocities that are coming to light annoy anyone sane.” Given the evident weakness of any substantive assertions Russia might assert in a suit of this kind, it is possible that the optics would advise for waiver Let Russia be beaten in public in the Court of law, on its merits, should it be able to claim, despite committing war crimes every day that its rights were violated by the decision of America, according to Stephan’s words “hoist Russia on its own petard.”