How Congress Can Shape America’s Use of Economic Sanctions

Although he may not love sanctions as much as tariffs, Donald Trump has demonstrated since returning to the presidency that the use of sanctions continues to be a key component of U.S. foreign policy. In his first months back in office, Trump has both reinstituted a “maximum pressure” campaign against Iran and offered to lift sanctions on Iran as part of a diplomatic agreement with the country. In a similar vein, he has both threatened new sanctions on Russia if it did not come to the negotiating table with Ukraine and ordered plans for removing sanctions on Russia as part of a potential peace agreement. Trump has also imposed financial and travel restrictions on International Criminal Court officials, canceled a sanctions exemption that allowed Chevron to operate in Venezuela, and announced that he was going to lift sanctions on Syria. Meanwhile, the U.S. Treasury Department and State Department maintain dozens of other ongoing sanctions programs, targeting a wide array of countries and non-state actors.

While the central role of sanctions in U.S. foreign policy is widely recognized, Congress’s influence on the use and effectiveness of sanctions is less understood. In fact, Congress has driven many of the most important U.S. uses of sanctions in recent decades. Congress spearheaded the sanctions that induced Iran to enter into nuclear talks during Barack Obama’s presidency, established the landmark Magnitsky human rights regime that has resulted in the imposition of sanctions on individuals and entities in more than 50 countries, and instituted sweeping sanctions on investment in Syria as the regime of Bashar al-Assad carried out mass atrocities. Today, a large bipartisan coalition of members of Congress is threatening to approve new sanctions on Russia if Russia does not engage in good-faith negotiations with Ukraine. Looking forward, sanctions legislation is likely to remain an attractive policy tool for members of Congress because it is often relatively easy for them to pass and thus demonstrate to their constituencies that they are doing something about an issue of concern: Sanctions legislation does not usually require an appropriation and can often gain bipartisan support.

Yet there are also significant shortcomings in the role of Congress on sanctions policy. Many sanctions laws do not sufficiently incentivize their designated targets to accommodate U.S. concerns or demands, which often results in sanctions lasting indefinitely and without desired changes in target behavior. At the same time, Congress frequently allows the president to act unilaterally on sanctions, with little or no required reporting or congressional review. To maximize the effectiveness of U.S. sanctions policy, Congress can consider carefully how sanctions legislation is likely to influence the behavior of other countries and should strike a balance between prescribing policy and granting needed discretion to the executive branch.

Key Features of Sanctions Legislation

Several legislative design features can have great influence on the use, impact, and removal of sanctions. Among the most important is the degree of flexibility Congress provides to the president in the legislation’s implementation. Congress, for example, can mandate the use of sanctions without giving the executive any flexibility with respect to when or whether to impose the mandated sanctions. But Congress can also choose to authorize the use of sanctions without requiring the executive to take any steps. Either end of this flexibility spectrum carries clear downsides. A legislative sanctions mandate that lacks any flexibility may prevent the president from adjusting U.S. policy in response to changing conditions or using the prospect of policy change as a point of leverage in negotiations with a sanctions target. But legislation that grants the executive complete discretion makes it easy for the president to ignore the will of Congress.

Given these competing downsides, Congress is usually best served by striking a middle ground that mandates the use of sanctions while granting the president some leeway regarding their imposition. This leeway could come in the form of a waiver that allows the president to opt out of imposing the mandated sanctions based on a determination that they would not be in the national security interest of the United States. While granting the president such a waiver might seem to give the president excessive flexibility, the requirement to issue a waiver to avoid imposing sanctions can force the executive to weigh whether or not to impose sanctions in a given case and provide a window of opportunity for sanctions proponents to make their case to government officials. Indeed, the majority of sanctions laws that provide the president with a waiver result nevertheless in executive branch actions to impose the legislated sanctions. For example, the Trump administration implemented many of the sanctions on Russia that were mandated by the 2017 Countering America’s Adversaries Through Sanctions Act (CAATSA), even though the law gave the executive branch the authority to waive implementation of the sanctions on national security grounds.

Congress also should consider carefully how sanctions legislation is likely to influence the behavior of its intended targets. If legislation lacks any flexibility, countries subject to sanctions may conclude that there is little reason for them to accommodate U.S. demands. But if legislation provides for the possibility of modifying or removing sanctions, target countries will have more incentive to adjust their behavior. Congress can provide target countries with this type of incentive by including in legislation provisions that enable the executive to lift or avoid imposing sanctions if the executive certifies that the target has met certain conditions. For example, the 2019 Caesar Syria Civilian Protection Act (Caesar Act), which mandates sanctions on Syria, empowers the president to lift the sanctions if he or she certifies that Syria has met six stipulated conditions. In a similar logic, Congress can incentivize targets to accommodate U.S. concerns by requiring legislation to be reauthorized periodically in order to remain in effect. For instance, the aforementioned Caesar Act needs to be reauthorized every five years in order to remain in effect. Without such certification provisions or reauthorization requirements, targets may conclude that achieving the removal of sanctions is a hopeless endeavor.

Congress can also balance the need for executive discretion with the maintenance of congressional prerogatives by reviewing presidential sanctions decisions and, when appropriate, overturning them. It has become commonplace for presidents to impose sanctions based on a declaration of a national emergency under the International Emergency Economic Powers Act (IEEPA), and then to keep those sanctions in place indefinitely. Congress could scale back this presidential power by reforming IEEPA to sunset all presidential declarations of national emergencies after a certain period of time unless Congress has voted to approve the declarations. But even under the existing IEEPA, Congress has the authority to overturn national emergency declarations by enacting a joint resolution of disapproval. By the same token, Congress can act to prevent the president from lifting sanctions when doing so is not merited. Section 216 of CAATSA gives Congress the authority to reject a presidential move to lift certain sanctions on Russia through passage within 30 days of a joint resolution of disapproval. This type of provision can constrain the president from lifting sanctions prematurely in pursuit of an ill-advised deal.

Further, Congress can include in sanctions legislation requirements that the executive report at specified intervals on the effects and effectiveness of the legislated sanctions programs. Such reporting requirements can help to ensure that sanctions programs are regularly reviewed, facilitating needed policy adjustments. While being cognizant of the need to not overburden the executive with excessive reporting requirements, Congress should consider mandating periodic reviews of sanctions programs whenever the need for policy adjustments is likely to be high. To mitigate the difficulty of ensuring that the executive branch fully complies with a reporting requirement, Congress could charge the independent U.S. Government Accountability Office (GAO) with conducting some of these reviews or tie the reauthorization of sanctions programs to the submission of the mandated reports.

Looking Ahead

How might some of these principles of sound legislating apply to upcoming decision points involving sanctions? Consider the possibility of Trump seeking to lift sanctions on Russia as part of a deal with Vladimir Putin. Since 2012, Congress has enacted a series of laws imposing an array of sanctions on Russia in response to Russian human rights violations, corruption, aggression with respect to Ukraine, and interference in U.S. elections. Collectively, these laws give the president discretion to waive the application of some sanctions and remove some individuals and entities from sanctions lists, but they also place significant limits on the president’s ability to lift key sanctions unilaterally.

For instance, the Suspending Normal Trade Relations with Russia and Belarus Act and Ending Importation of Russian Oil Act, both enacted in 2022 following Russia’s full-scale invasion of Ukraine, prohibit normal trade relations with Russia or the importing of Russian oil unless the president certifies that Russia has reached an agreement for the “cessation of military hostilities that is accepted by the free and independent government of Ukraine,” “poses no immediate military threat of aggression to any North Atlantic Treaty Organization member,” and “recognizes the right of the Ukrainian people to independently and freely choose their own government.” The laws further stipulate that, if the president issues these certifications, the sanctions in question can be removed only if Congress does not enact a joint resolution of disapproval within 90 days.

To be sure, Trump could issue these certifications even if objective observers assess that the stated conditions had not been met, and a Republican-controlled Congress might not muster the courage to enact a disapproval resolution over his opposition. But the issuing of implausible certifications would give ammunition to Ukraine supporters in both parties to sharply criticize Trump’s actions, increasing the political costs to Trump of lifting the sanctions. To avoid such costs, Trump might opt not to lift sanctions on Russia until Russia and Ukraine have both agreed to a deal. In the meantime, members of Congress seeking to avoid a premature lifting of Russia sanctions could increase the political costs to Trump of removing the sanctions prematurely by publicly highlighting the conditions that must be met in order for lifting to occur. Congress could further constrain Trump’s ability to engage with Russia by approving the sanctions bill introduced by Sen. Lindsey Graham (R-S.C.) and Sen. Richard Blumenthal (D-Conn.), which tees up new penalties on Russia and has accumulated 40 Democratic and 39 Republican co-sponsors in the Senate, as of this writing.

Congress has also set out a road map for the lifting of key sanctions on Syria. The 2019 Caesar Act mandates the placement of financial sanctions on any U.S. or non-U.S. entity conducting business in Syria. This law made it exceedingly difficult for the Assad government to attract investment during its final years in power, and has been making it very difficult for Syria’s new government, led by Ahmed al-Sharaa, to engage foreign businesses and governments in the reconstruction and development of the country.

Under the Caesar Act, the president can lift the stipulated sanctions if he or she determines that Syria is no longer bombing civilians or civilian sites, is allowing the free movement of people and the safe return of displaced people, has released all political prisoners, is pursuing accountability for war crimes, and is fulfilling its commitments regarding the elimination of chemical weapons. In addition, the law requires the president to provide congressional foreign policy committees with a briefing regarding any such determination. Trump will need to take these steps in order to move forward with lifting the Syria sanctions in accordance with the law, providing Congress with an opportunity to conduct oversight on the issue.

Congress also can continue to play an important role in Iran sanctions. As with Russia, a slew of sanctions targeting Iran are on the books. Trump’s relaunch in February of his “maximum pressure” campaign on Iran mainly involved more stringent enforcement of this existing legislation. If Trump’s implementation of this policy moves forward, Congress could mandate a review by the GAO of the effects and effectiveness of the maximum pressure campaign, and use the information generated by GAO and other sources as a basis for developing revisions to the sanctions laws. Alternatively, if Trump’s more recent diplomatic outreach to Iran bears fruit, resulting in an agreement in which the United States lifts sanctions on Iran in return for constraints on Iran’s nuclear program, Congress will have an opportunity to weigh in by choosing whether or not to repeal any of the many sanctions laws targeting the country.

At a time when America’s democratic institutions are under severe threat, mandating sanctions reports and tweaking sanctions laws may seem akin to “rearranging the deck chairs on the Titanic.” But key parts of the governmental sanctions machinery, such as the Treasury Department’s Office of Foreign Assets Control, continue to churn out mundane and not-so-mundane sanctions actions on a weekly basis, and Congress retains the capacity to influence some of this foreign policy behavior. While the Trump administration is making it far more difficult for Congress to carry out many of its constitutional prerogatives, sanctions policy remains one of the areas in which effective legislation and congressional oversight are not necessarily out of reach.

Editor’s Note: An earlier version of this piece was presented at a workshop convened by Bridging the Gap and the John W. Kluge Center at the Library of Congress, with support from the Raymond Frankel Foundation.