Finding Common Ground U.S. Export Controls in a Changed Global Environment (1991) / Chapter Skim
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Appendix H
Appendix H
Pages 321-335
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From page 321... ...
The EAA, alone among the major export control statutes, exempts actions taken by the Commerce Department from the judicial review provisions of the Administrative Procedure Act (APA) .2 Thus, until only recently, Commerce Department action in this area has been nearly impossible to challenge effectively in court.
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From page 322... ...
This paper, after a brief examination of the extent to which judicial review currently is available under the EAA, evaluates whether increased review of Commerce actions is desirable. The paper concludes that eliminating the EAA's current exemption of agency actions from judicial review under the APA would help ensure Commerce's fidelity to congressional intent as expressed in the EAA and would help prevent needless economic harm to U.S.
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From page 323... ...
Review of Enforcement Actions The 1988 amendments to the EAA created a limited opportunity for judicial review of Commerce Department civil enforcement action.5 Section 13(a) of the EAA now provides that, when Commerce brings a civil enforcement action against an exporter for violation of the EAA or the Export Administration Regulations (EAR)
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From page 324... ...
allows an exporter who has applied to the Commerce Department for a validated export license to file suit in federal district court to compel the agency to act on the application within the deadlines set out in EAA Section 10. However, even if an exporter is successful in compelling the agency to make a decision under Section lO(j)
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From page 325... ...
}7 The court agreed with this argument and held that EAA Section 13 did not authorize the secretary to reverse the ALJ's determination, and therefore the secretary's action was ultra vires and reviewable under established principles of administrative law. The Dart court placed great emphasis on the "well-established presumption favoring judicial review" of agency action alleged to be without statutory authority.l8 According to the Dart court, "Ealbsent a clear indication to the contrary, the logical inference is that Congress expected courts to enforce this Estatutory]
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From page 326... ...
When a court determines that a particular agency action was ultra fires, the court will not grant substantive relief to the exporter by entering a final judgment on the claim.24 Rather, the court will only remand the case to the agency with instructions to proceed within the bounds of the statute. Therefore, an exporter could wage a long and expensive court battle to have a Commerce decision vacated as ultra fires, only to have the agency again rule against the exporter, albeit in a different, procedurally correct manner.25 Finally, an exporter may be able to obtain judicial review of Commerce Department action despite EAA Section 13(a)
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From page 327... ...
The primary argument for subjecting agency action under the EAA to APA judicial review is that the Department of Commerce on occasion has not always administered the export control regime in accordance with the provisions of the EAA and that, as a result, exporters at times have wrongly been denied permission to export goods or have been subjected to undue delay and expense in obtaining the necessary authorization. Although in certain egregious cases an exporter may be able to obtain some limited review under the Dart case, the day-to-day agency decisions that are most important to the exporter, such as licensing decisions, interpretation of the EAA, and determining whether a particular good is on the Commodity Control List, remain insulated from meaningful review.30 There is a good deal of at least anecdotal evidence that the Commerce Department has not always carried out its licensing functions as it should; the 1982 Soviet gas pipeline case and the more recent case involving wirebonders are two examples.3~ Allowing aggrieved exporters to seek judicial review under Sections 701-06 of the APA would go a long way toward preventing this type of administrative shortcoming and would help ensure agency accountability to congressional intent as expressed in the EAA.
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From page 328... ...
There are at least three responses to this argument.33 The most straightforward response is this: The threat of judicial scrutiny of Commerce Department actions should encourage the Department to draft its implementing regulations more clearly and to document its administrative decisions more carefully. It would, at the same time, inhibit actions that are clearly inconsistent with the statute and the Commerce Department's own regulations.34 In addition, the well-established administrative law doctrines of standing, ripeness, and exhaustion of administrative remedies would limit the availability of judicial review to situations in which the administrative process has been effectively utilized and found wanting.35 Finally, it bears mentioning that the high cost of litigation should have a deterrent effect on frivolous challenges to Commerce action.36 The second, and more substantial, argument against exposing Commerce Department action under the EAA to APA judicial review concerns the close relationship between export controls and the foreign policy and national
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From page 329... ...
The executive branch, and the President in particular, are thought to be best equipped to act quickly and decisively in the international sphere, and courts are thought to lack expertise at deciding questions that are basically ones of policy.37 The legislative history of the original 1949 Export Control Act reflects that this was at least a part of the rationale for exempting the EAA from judicial review.38 It seems indisputable that the fundamental decisions of foreign policy and national security entrusted by Congress to the executive branch should remain free from judicial oversight. However, this does not mean that judicial review of Commerce Department actions under the EAA could not be expanded without infringing upon the proper domain of the executive branch.
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From page 330... ...
. between the control of exports and foreign policy and national security."46 The court characterized this argument as simply raising the question of whether the challenged agency action constituted a nonjusticiable political question.47 The court noted that the plaintiff merely was challenging the Commerce Department's interpretation and application of the EAR in its particular circumstances, and was not challenging any broad policy decisions of the executive branch.
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From page 331... ...
, and judicial review of executive action under the statute presumably is limited only by traditional doctrines of judicial restraint, including the political question doctrine.S3 It seems selfevident that the national security and foreign policy considerations involved in the administration of the AECA are at least as important and sensitive as those underlying the EAA. A final argument for opening Commerce Department decisions under the EAA to judicial review under the APA despite the EAA's relation to foreign policy involves the standard of review of agency action under the APA.
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From page 332... ...
4653 dealing with judicial review will become law.* CONCLUSION In its current state, the Export Administration Act provides exporters with a meaningful opportunity to seek judicial review of Commerce Department action only in the setting of a civil enforcement proceeding.
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From page 333... ...
However, under the APA judicial review provisions, appeals are to be brought in federal district court unless the enabling statute provides otherwise.
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From page 334... ...
C.f. Murphy and Downy, National Security, Foreign Policy and Individual Rights: The Quandry of United States Export Controls, 30 Int'l & Comp.
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From page 335... ...
See P Ray, Guide to Export Controls 50 (1987)
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