Trust the Process? Rethinking Procedural Due Process and the President’s Emergency Powers over the Digital Economy

by Jonathan W. Ellison

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Abstract

To protect U.S. user data from foreign threats, presidents have wielded their emergency power to ban transactions with certain technology companies. This emergency power, if unchecked, threatens both the procedural rights of some technology companies and U.S. constitutional structure.

Concerning procedural rights, this Note evaluates existing procedural due process jurisprudence to identify the scope of these protections in the data security context, which remains unexplored in scholarship and judicial opinions. For guidance, this Note looks to cases involving counterterrorist financing and national security reviews of foreign investment, and it concludes that procedural due process protects many technology companies that collect personally identifiable information. In particular, due process requires the government to provide these companies with meaningful notice and an opportunity to respond before the president wields emergency powers that slash these companies’ economic interests. These predeprivation procedural rights significantly safeguard affected companies by giving them time to respond.

However, due process alone will not prevent the emergency executive from running roughshod over the Constitution’s system of checks and balances. This Note argues, as have many commentators, that Congress should recalibrate the balance: Congress should amend IEEPA to include a sunset provision that would limit the duration of any national emergency until Congress affirmatively votes to extend it through a fast-track process. Ultimately, procedural due process and political process must work hand in hand to protect both constitutional rights and structures.

Trust the Process? Rethinking Procedural Due Process and the President’s Emergency Powers over the Digital Economy

by Jonathan W. Ellison

Click here for a PDF file of this article

Abstract

To protect U.S. user data from foreign threats, presidents have wielded their emergency power to ban transactions with certain technology companies. This emergency power, if unchecked, threatens both the procedural rights of some technology companies and U.S. constitutional structure.

Concerning procedural rights, this Note evaluates existing procedural due process jurisprudence to identify the scope of these protections in the data security context, which remains unexplored in scholarship and judicial opinions. For guidance, this Note looks to cases involving counterterrorist financing and national security reviews of foreign investment, and it concludes that procedural due process protects many technology companies that collect personally identifiable information. In particular, due process requires the government to provide these companies with meaningful notice and an opportunity to respond before the president wields emergency powers that slash these companies’ economic interests. These predeprivation procedural rights significantly safeguard affected companies by giving them time to respond.

However, due process alone will not prevent the emergency executive from running roughshod over the Constitution’s system of checks and balances. This Note argues, as have many commentators, that Congress should recalibrate the balance: Congress should amend IEEPA to include a sunset provision that would limit the duration of any national emergency until Congress affirmatively votes to extend it through a fast-track process. Ultimately, procedural due process and political process must work hand in hand to protect both constitutional rights and structures.