As a sideshow to the theater that is Congressional review of the Iran nuclear deal, some skeptical Senators have urged the quick passage of a bill reauthorizing the Iran Sanctions Act (“ISA”) – set to expire in 2016 – for a decade. According to these Senators – which includes the Chair of the Senate Foreign Relations Committee, Bob Corker (R-TN), and SFRC’s former Ranking Member, Bob Menendez (D-NJ) – the Obama administration cannot promise the availability of snapback sanctions…if there are no sanctions to snap back to. And, by failing to express support for ISA’s reauthorization, the administration is showing what a paper tiger the snapback option is, in fact.

It’s a concise but clever talking point, which has literally been shouted at members of the Obama administration that have testified before the Senate Foreign Relations Committee and the Senate Banking Committee. (Even OFAC’s own Adam Szubin received his share of taunting from Senator Menendez during recent testimony. If you don’t trust me, you can go back and watch the video.)

It’s not just a clever talking point, though. It’s also totally wrong.

Without ISA’s reauthorization, the President will have all the tools to impose the full menu of sanctions outlined in (and amended to) the Iran Sanctions Act for companies that undertake certain investments in Iran’s energy sector above a threshold amount. Far from being unable to snapback ISA’s menu of sanctions should ISA itself ride off into the sunset next year, the President will be able to impose the same exact sanctions for the same exact behavior on the basis of legal authorities separate and apart from ISA.

What legal authorities are these? None other than those found in the International Economic Emergency Powers Act (“IEEPA”), which is the foundational piece of legislation in the U.S. sanctions world.

Under IEEPA, the President is granted extensive authorities to take unilateral action imposing sanctions on foreign persons or countries should the President first identify that the situation to which he is responding constitutes a ‘national emergency’. Sanctions include, as an example, prohibitions on any transactions in foreign exchange; transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof; or the importing or exporting of currency or securities by any person, or with respect to any property, subject to U.S. jurisdiction.   Moreover, the President is granted authorities to block and to prohibit the importation or exportation of any property in which any foreign country or national thereof has any interest, amongst other powers.

Under IEEPA, the list of Presidential authorities is a long one. That’s why IEEPA has served well as the centerpiece of U.S. sanctions authorities, giving the President the option to act alone without prior Congressional action to threats that he determines warrant a sharp U.S. response.   In the context of Iran, for instance, the imposition of the U.S.’s comprehensive trade and investment embargo with Iran was first accomplished via the President’s IEEPA authorities.

It is instructive, then, to compare ISA’s menu of sanctions (which has been expanded after successive amendments in CISADA and the TRA) with Section 203 of IEEPA. (This is a comparison made simple by the fact that ISA is codified as a Note to IEEPA in the U.S. Code at 50 U.S.C. § 1701, et. seq.).

Under ISA, should the President discover that a person is undertaking certain investments in Iran’s energy sector above a threshold amount, the President is mandated to utilize ISA’s menu of sanctions and impose certain of them on that person. ISA’s menu of sanctions includes:

• Direction to the Export-Import Bank of the U.S. not to give approval to the issuance of any guarantee, insurance, extension of credit, or participation in the extension of credit in connection with the export of any goods or services to any sanctioned person
• Prohibition on the issuance of any specific license or specific permission or authority to export any goods or technology to a sanctions person under the EAA, the Arms Export Control Act, the Atomic Energy Act, or any other statute that requires prior review and approval
• Prohibition on any U.S. financial institution from making loans or providing credits to a sanctioned person totaling more than $10 million in any 12-month period unless such person is engaged in activities to relieve human suffering and the loans or credits are provided for such activities
• Prohibition on any transactions in foreign exchange that are subject to the jurisdiction of the U.S. and in which the sanctioned person has any interest
• Prohibition on any U.S. person from investing in or purchasing significant amounts of equity or debt instruments of a sanctioned person
• Imposition of restrictions on imports with respect to a sanctioned person, in accordance with IEEPA

This is about half of ISA’s full menu, but those who are familiar with IEEPA should notice a clear trend: these are all sanctions that the President could impose on the basis of his own IEEPA authorities. There is nothing here that lies outside the purview of the President’s IEEPA sanctions authorities.

This brings us back to those skeptical Senators and their oft-heard lament that the President is forgoing a vital sanctions tool in ISA by not advocating its re-authorization a full year in advance. (From what I have heard, ISA’s reauthorization at this point is an issue of timing – not an issue of the President’s opposition to reauthorization itself.)   They are wrong, because even without ISA’s authorities, the President could issue an Executive Order imposing ISA’s menu of sanctions for the same conduct that was sanctionable under ISA. As such, should the President need to snapback sanctions following an instance of Iran’s significant non-performance of the nuclear deal, then the President could issue an Executive Order doing so in the space of an hour.

What do we snapback to, then, if the original sanctions authority (ISA) has been allowed to sunset?   The answer: IEEPA.

It’s a simple point: Even if ISA is allowed to sunset, the President retains the capability to snapback its sanctions should Iran stand in breach of the nuclear deal. Nothing in this regard, in other words, depends on ISA’s reauthorization. Better familiarization with the President’s current sanctions authorities under IEEPA would have warned off some Senators from making crafty yet – in the end — errant talking points on the hollowness of the nuclear deal’s sanctions snapback absent ISA’s reauthorization.