It seems every week brings a new controversy over the U.S.-Iran nuclear accord.

Last week, Fox News reported that certain administration lawyers had concluded that the provision of the Joint Comprehensive Plan of Action (“JCPOA”), agreed to by the U.S., other major world powers, and Iran in July, allowing for foreign subsidiaries of U.S. parent companies to engage in certain dealings with Iran violated current federal law – namely, § 218 of the Iran Threat Reduction and Syria Human Rights Act (“TRA”), which closed the loophole for foreign subsidiaries by explicitly prohibiting such foreign subsidiaries from engaging in transactions with Iran.

The administration lawyers cited by Fox News remain nameless, but the legal analysis certainly does not square with that offered by OFAC’s Office of the Chief Counsel, which was not merely privy to the details of the negotiations but actively participated in the talks. Presumably, OFAC’s own lawyers undertook an exhaustive survey of the U.S. statutory sanctions on Iran and determined for the administration itself the legality of various forms of sanctions relief before any U.S. offers were made to Tehran.

That the foreign subsidiary provision is legal appears to be the opinion of Treasury’s top sanctions official. As the Fox News story reports, former OFAC Director and now Acting Undersecretary for Terrorism and Financial Intelligence, Adam Szubin, testifying before the Senate Banking Committee, stated that the TRA “contains the licensing authority that Treasury would anticipate using…to allow for certain categories of activity for those foreign subsidiaries.” That authority, according to Szubin, is found at § 601 of the TRA, which states that the President is authorized to “exercise all authorities” found in the International Emergency Economic Powers Act (“IEEPA”) to “carry out” the terms of § 218 of the TRA.

Some administration lawyers, though, disagree with this reading, according to Fox News. In this contrary view, the argument that § 601 of the TRA gives the President the authority to effectively license back into law the foreign subsidiary loophole that § 218 of the TRA was designed to shut down defeats the entire purpose of the statutory provision, being “the exact opposite of what the statute ordered,” one administration lawyer claims.

Is a general license authorizing foreign subsidiaries of U.S. parent companies to undertake certain dealings with Iran on the shakiest of legal grounds, then?

I don’t think so.

In my view, there are at least two ways to read the relevant law to permit the Administration to license foreign subsidiaries of U.S. parent companies to engage in certain transactions with Iran.

First, there is the (alleged) Administration’s legal opinion. That is, § 601 of the TRA explicitly authorizes the President to “exercise all authorities provided in §§ 203 and 205 of [IEEPA] to carry out [§ 218 of the TRA]…” § 203 of IEEPA permits the President to regulate, “by means of instructions, licenses or otherwise”:

[A]ny acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power or privilege with respect to, or transactions involving, any property in which any foreign country of a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States…

This is almost as broadly written as possible (and is still not a complete statement as to the full scope of authorizations in § 203 of IEEPA); and, as such, it would certainly cover the case of a license authorization to foreign subsidiaries of U.S. parent companies to engage in certain dealings with Iran.

The key point, though, is that § 601 of the TRA authorizes the President to exercise all authorities of § 203 of IEEPA – including those that would permit him to license otherwise prohibited transactions. While his exercise of such authorities must be to “carry out” § 218 of the TRA, there is nothing in the TRA describing (or rather mandating) how the President must “carry out” its terms.

It is a fair reading to suggest that, absent such a mandate as to how the President must “carry out” the terms of § 218 of the TRA and in light of the fact that the Congress gave the President the permission to “exercise all authorities” of § 203 of IEEPA, the President has the discretion to determine for himself the appropriate way of implementing § 218 of the TRA into law. Generally authorizing all transactions that had been prohibited by § 218 of the TRA, while seemingly inconsistent with Congress’s plain language and intent, is rather only a robust reading of the grant of authority to the President contained in § 601 of the TRA.

Second, the Administration could argue, in the alternative, that the President’s IEEPA authorities run concurrent with § 218 of the TRA; and, as such, the President could issue a regulatory amendment pursuant to his current IEEPA authorities to license foreign subsidiaries of U.S. parent companies to engage in certain transactions with Iran. Because nothing in the TRA precludes the President from using his statutory powers under IEEPA, the effect of such a regulatory amendment would be to effectively carve-out the prohibition found in § 218 of the TRA. This would be on solid legal footing under the claim that the President’s issuance of a new regulation was “later-in-time” to the enactment of § 218 of the TRA and thus preempted its force.

The broader point, though, is that the President has typically exercised his IEEPA authorities with all manner of discretion – none of which has previously invoked a negative Congressional response. Should there be any legal challenge to the President’s exercise of such authorities in the present case (and there are significant hurdles to such a challenge ever reaching a court), this “systematic, unbroken executive practice,” as Justice Frankfurter noted in Youngstown Co. v. Sawyer, would carry significant weight before a court and would likely preclude any serious challenge to the President’s current exercise of his statutory authorities.

Indeed, if Congress wants to challenge the President, it has ample room to do so: it can legislate out of law the President’s ability to reinstate the loophole for foreign subsidiaries of U.S. parent companies. Courts will not be likely to look kindly on the Congress going to the courts to resolve a matter that could just as well be resolved through new legislation.

Is the Administration’s reading of § 218 of the TRA controversial? Perhaps, but nothing out of the ordinary for how successive administrations have viewed the broad authorities contained in IEEPA to regulate or license all manner of activities in ways anathema to Congressional intent. For that reason, I don’t see this criticism as well-grounded and am confident that the Administration will be able to license foreign subsidiaries of U.S. parent companies to engage in transactions with Iran absent much further hurdles.