In response to this post on the pending license authorization for the importation of Iranian-origin carpets and foodstuffs, some have asked under what authorities President Obama can license such activities considering the legislative repeal in 2010.

The answer is simple: § 103 of the Comprehensive Iran Sanctions Accountability and Divestment Act, which effectively codified the comprehensive U.S. trade and investment embargo with Iran, authorized the President to “prescribe regulations” to implement the trade embargo, including “regulatory exceptions to the [import and export ban]…” However, § 103(d)(2) stated that “no exception [to the import of Iranian-origin goods and services into the U.S.] may be made for the commercial importation of an Iranian-origin goods described in [31 C.F.R. § 560.534]…” Ostensibly, then, Congress had withdrawn from the President the power to authorize the importation of Iranian-origin carpets and foodstuffs that had been permitted pursuant to 31 C.F.R. § 560.534.

But not the case. Instead, Congress held that no exception for the importation of Iranian-origin carpets and foodstuffs was permissible unless the President “prescribe[d] a regulation providing for such an exception on or after the date of the enactment of this Act and submit[ted] to [Congress] a certification in writing that the exception is in the national interest of the United States and a report describing the reasons for the exception.” This is one of those infamous cases where Congress prohibits the President from engaging in a certain activity, but qualifies the prohibition with a carve-out that effectively eviscerates the very purpose of the prohibition (i.e., the President can create regulatory exceptions to the U.S. trade embargo, except in this one case where he can create a regulatory exception, too.). Examples like this abound in U.S. sanctions legislation targeting Iran.

As it stands, then, the President is able to authorize a regulatory exception to the U.S. trade embargo with Iran that permits U.S. persons to import Iranian-origin carpets and certain foodstuffs. In contrast to all other regulatory exceptions, however, the President will need to justify doing so in a report to Congress and certify to Congress that such an exception is within the U.S.’s national security interest. No doubt, it is a curious feature of current U.S. sanctions law that the President needs to provide such certification in regards to the importation of Iranian-origin carpets and foodstuffs, while the President is not required to submit any such reports to Congress for specifically licensing the sale of civilian aircraft and related aircraft parts to Iran.