Is Biden trying to avoid congressional review of Russia sanctions?

Last month, the White House unveiled a sweeping new executive order (EO) authorizing a wide range of sanctions against Russia. While laudable as a product and effort to expand the Russia sanctions regime, the EO contains numerous provisions that duplicate existing, longstanding sanctions. These redundant provisions raise concerns that the Biden administration may be attempting to avoid aggressive congressional oversight codified in Russia sanctions legislation and EOs, as any executive orders signed after the Countering America’s Adversaries Through Sanctions Act (CAATSA) became law in August 2017 are not subject to its congressional review provision.

The new EO gives the U.S. Treasury Department the ability to designate anyone who operates or has operated in the “technology sector or the defense and related materiel sector of the Russian Federation economy” or in other sectors of the Russian economy that Treasury may later decide to identify. This is expansive authority that effectively allows the United States to sanction anyone operating in any sector of the Russian economy.

Yet the authorities for such broad-reaching sanctions already exist within both statute and previous executive orders. For example, EO 13661, which President Obama signed in March 2014, imposes sanctions on individuals who are Russian officials or who operate in the Russian arms sector — nearly verbatim to the language in the new EO. Similarly, EO 13662, also signed in March 2014, authorizes the secretary of the Treasury to designate anyone who operates “in such sectors of the Russian Federation economy as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State, such as financial services, energy, metals and mining, engineering, and defense and related materiel.”

In addition, CAATSA mandates the application of sanctions against anyone conducting a significant transaction with an individual or entity operating in the Russian defense or intelligence sectors. CAATSA also contains sanctions on cyber activities and sanctions evasion through deceptive or evasive transactions, as does the new EO.

Why the need for redundant provisions? The administration may be attempting to lay the groundwork to avoid aggressive congressional review of certain Russia-related sanctions. At the time CAATSA was passed, a bipartisan coalition in Congress was concerned that the Trump administration was preparing to lift sanctions, rescind designations, and otherwise weaken Russia sanctions after U.S. intelligence agencies had credibly concluded that Russia interfered in the 2016 U.S. presidential election.

As a result, Congress sought to constrain the ability of the Trump administration to unwind the Russia sanctions program by including a mechanism for congressional review and disapproval of individual delistings or licenses. CAATSA mandates that before the administration can delist an individual designated under certain Russia-related sanctions authorities or exercise a waiver for Russia sanctions contained in CAATSA, it must first submit a report to Congress. This report triggers a 30-day review period during which the president cannot take specified actions that eliminate or reduce sanctions on Russia. 

Congress may then make use of an expedited legislative process to either approve or disapprove of the notified action by passing a joint resolution. If Congress approves of an action or takes no action within the 30-day period, the administration may proceed with the notified action. If Congress disapproves by a veto-proof majority, the administration cannot take the notified action. This mechanism essentially provides Congress with a veto over the unwinding of the Russia sanctions program.

CAATSA applied the congressional review process to all Russia-related sanctions — whether imposed by EO or by statute — at the time of its passage. But any EOs signed after CAATSA became law are not subject to its congressional review provision.

Since 2017, Congress has exercised the review process on occasion. The most significant example was the December 2018 congressional review of the delisting of Rusal and EN+, companies owned or controlled by Oleg Deripaska, the Russian oligarch with close links to Vladimir Putin. In its notice to Congress, the Trump administration asserted that, based on significant corporate changes, Deripaska no longer effectively owned or controlled these companies.

Yet a vote to maintain sanctions against these companies almost met the 60-vote threshold in the Senate, by a vote of 57-42, with 11 Republicans opposing the administration. The vote in the House was overwhelming in favor of maintaining the sanctions, by a vote of 362-53, with over 160 Republicans opposing the Trump administration.

This is a situation that the Biden administration likely seeks to avoid, particularly given the slim Democratic majorities in the House and Senate, and it helps to explain why the new Russia sanctions EO contains significant redundancies. If the Biden team sanctions Russian targets under the new authority and wants to unwind those sanctions at some point in the future, it will not need congressional approval.

Given Congress’s key role in sanctions policy over the last decade, including driving many of the most important sanctions actions against Iran, Russia, and China, it is doubtful that Congress is willing to cede this oversight.

Rather, Congress should insist that the administration provide it with briefings and information on the potential delisting of individuals and entities who are sanctioned under the new authority. If the administration refuses, Congress should consider amending CAATSA to extend the same approval mechanism to new Russia sanctions. By so doing, lawmakers can assert their rightful prerogative to apply sanctions on Russia — and to check any administration that seeks to unduly remove them.

Matthew Zweig, a former congressional staffer and State Department official, is a senior fellow at Foundation for Defense of Democracies (@FDD), where Eric B. Lorber, a former senior advisor to the Under Secretary for Terrorism and Financial Intelligence at the United States Department of the Treasury, is the senior director of the Center on Economic and Financial Power (CEFP). FDD is a nonpartisan think tank focused on national security and foreign policy.