Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security
This presidential order temporarily suspends enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days.
The order directs the Attorney General to review current FCPA guidelines and policies, aiming to curb what the President views as excessive and counterproductive enforcement that harms American economic competitiveness and national security.
The review will lead to updated guidelines prioritizing American interests, and the Attorney General is tasked with potentially taking remedial action regarding previous enforcement actions.
Arguments For
- Intended benefits: Reducing burdens on American businesses operating internationally, improving U.S. global economic competitiveness, and freeing up prosecutorial resources for other priorities.
- Evidence cited: The order argues that the FCPA has been overextended, harming U.S. interests and impeding foreign policy objectives.
- Implementation methods: A 180-day review of FCPA guidelines and policies by the Attorney General, with a potential extension, leading to updated guidelines prioritizing American interests.
- Legal/historical basis: The President's Article II authority over foreign affairs and the need to protect American economic and national security are cited as justification.
Arguments Against
- Potential impacts: Increased instances of bribery and corruption abroad, undermining international efforts to combat these practices; potential damage to U.S. reputation for upholding the rule of law.
- Implementation challenges: Difficulties in defining 'proper bounds' for FCPA enforcement, potential for political influence in the review process, and the risk of inconsistent application of the law during the review period.
- Alternative approaches: Targeted reforms to existing FCPA regulations, focusing on the most egregious offenses and streamlining enforcement procedures, greater clarity and transparency in FCPA guidelines.
- Unintended effects: Companies may engage in riskier practices anticipating less scrutiny; difficulty balancing the need to protect American economic interests with international anti-corruption norms.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose and Policy. Since its enactment in 1977, the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 _et seq._) (FCPA) has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States. Current FCPA enforcement impedes the United States’ foreign policy objectives and therefore implicates the President’s Article II authority over foreign affairs.
The President’s foreign policy authority is inextricably linked with the global economic competitiveness of American companies. American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.
But overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.
It is therefore the policy of my Administration to preserve the Presidential authority to conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.
This section establishes the presidential order's purpose.
It argues that the Foreign Corrupt Practices Act (FCPA), since 1977, has been excessively broad and misused, harming U.S. interests and hindering foreign policy goals.
The order states that the President's foreign policy authority is tied to American businesses' global competitiveness and national security.
It concludes that overly broad FCPA enforcement hurts this competitiveness and, thus, national security; the administration will therefore work to remove excessive barriers to American commerce overseas.
Sec. 2. Policy of Enforcement Discretion. (a) For a period of 180 days following the date of this order, the Attorney General shall review guidelines and policies governing investigations and enforcement actions under the FCPA. During the review period, the Attorney General shall:
(i) cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made;
(ii) review in detail all existing FCPA investigations or enforcement actions and take appropriate action with respect to such matters to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and
(iii) issue updated guidelines or policies, as appropriate, to adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.
(b) The Attorney General may extend such review period for an additional 180 days as the Attorney General determines appropriate.
(c) FCPA investigations and enforcement actions initiated or continued after the revised guidelines or policies are issued under subsection (a) of this section:
(i) shall be governed by such guidelines or policies; and
(ii) must be specifically authorized by the Attorney General.
(d) After the revised guidelines or policies are issued under subsection (a) of this section, the Attorney General shall determine whether additional actions, including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions, are warranted and shall take any such appropriate actions or, if Presidential action is required, recommend such actions to the President.
This section outlines the specific actions to be taken.
The Attorney General will review FCPA guidelines and policies for 180 days (with potential for a 180-day extension).
During this review, new investigations and enforcement actions will largely cease, existing ones will be reviewed, and updated guidelines prioritizing American interests will be issued.
Post-review all subsequent FCPA actions must remain consistent with these new guidelines and require the Attorney General's explicit authorization.
The Attorney General must also assess the need for remedial measures concerning past actions.
Sec. 3. Severability. If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.
This section is a standard severability clause.
It ensures that if any part of the order is deemed invalid, the rest of the order remains in effect.
Sec. 4. General Provisions<em>. </em>(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
This section includes general provisions.
It clarifies that the order does not limit the authority of executive departments or agencies, or the Office of Management and Budget's functions.
Implementation must align with existing laws and available funds.
Finally, the order does not create any new legal rights or benefits enforceable against the U.S. government.