The collective freak-out from the legal establishment over the Trump administration’s sanctions on the International Criminal Court (ICC) was a masterclass in naive legal idealism.
When Executive Order 13928 was handed down, targeting ICC officials investigating American personnel, the academic elite immediately ran to the federal courts. They claimed their First Amendment rights were being shredded because they could no longer write legal briefs for, or consult with, the Hague. They painted a picture of a rogue executive branch stomping on the constitutional rights of well-meaning American lawyers. Recently making news in this space: Why Suspending ICE Roadblocks Is a Dangerous Illusion of Safety.
It was a beautiful, dramatic narrative. It was also total nonsense.
The lawsuit brought by civil rights groups and law professors was not a noble defense of the Constitution. It was a self-indulgent attempt to elevate academic careerism above national sovereignty. It ignored decades of established national security law, misunderstood the reality of how the International Emergency Economic Powers Act (IEEPA) works, and pretended that the First Amendment is a blank check to assist foreign entities acting against US interests. Further information into this topic are explored by NPR.
The uncomfortable truth that no one in the NGO crowd wants to admit is simple: foreign policy is not a seminar. The executive branch has the absolute authority to block transactions with foreign entities, and if your academic consulting gig gets caught in the crossfire, that is a minor, legally permissible consequence of geopolitical self-defense.
The Supreme Court Already Settled This Argument
The core of the legal challenge against the ICC sanctions was that the threat of civil and criminal penalties prevented US citizens from speaking, writing, and providing legal advocacy to the court. The plaintiffs argued this was an unconstitutional restriction on speech.
They acted as if this was some novel, unprecedented authoritarian overreach. It was not. The Supreme Court had already dismantled this exact argument a decade prior.
In the 2010 case Holder v. Humanitarian Law Project, the Supreme Court ruled 6-3 that the federal government could ban the provision of "material support" to designated foreign terrorist organizations, even if that support consisted entirely of legal training, advocacy, and peaceful conflict resolution. The plaintiffs in that case argued their First Amendment rights were violated because they just wanted to teach international law to groups like the PKK in Turkey.
The Court’s response was a cold splash of reality. Writing for the majority, Chief Justice John Roberts made it clear that when the political branches designate a foreign entity as hostile to national security, Americans do not have a constitutional right to provide that entity with specialized legal services. The Court recognized that foreign policy is a unified front. You cannot isolate "good" legal speech from the overall geopolitical friction.
The Material Support Parallel
To understand why the ICC lawsuit was dead on arrival, you have to look at the mechanics of foreign policy tools.
- Coordinated Pressure: The executive branch determines that a foreign entity poses a threat to US interests.
- Asset Freezes: The Treasury Department blocks the assets of the entity and anyone aiding them.
- The Spillover Effect: US citizens are prohibited from engaging in transactions—including professional services—with these targets.
If the government can block you from teaching international humanitarian law to a foreign militant group, it can absolutely block you from filing legal briefs for a foreign court that is actively trying to assert jurisdiction over US soldiers without the consent of the US government. To argue otherwise is to claim that the ICC deserves a special "academic exception" that does not exist in constitutional law.
IEEPA is the Absolute Weapon of the Executive
I have spent years watching corporate compliance departments and international litigators struggle with the Office of Foreign Assets Control (OFAC). If there is one thing that becomes obvious on day one of working with sanctions, it is that IEEPA is designed to be a blunt instrument.
Under IEEPA, the President is granted sweeping powers to declare a national emergency in response to an "unusual and extraordinary threat" originating outside the United States. Once that emergency is declared, the President can regulate, prevent, or prohibit virtually any economic transaction between US persons and the foreign threat.
The plaintiffs in the ICC challenge tried to argue that the ICC could not possibly constitute an "unusual and extraordinary threat." They scoffed at the idea that a court of law in the Netherlands could threaten the security of the United States.
But that is not a question for a federal judge to decide.
The Non-Justiciability of Foreign Policy
For over two centuries, the judiciary has consistently deferred to the executive branch on what constitutes a foreign threat. The courts are not equipped to run foreign policy. They do not have intelligence briefings, diplomatic cables, or military advisors.
If the President determines that a foreign tribunal claiming the right to arrest and prosecute US military personnel without US consent is a threat to national sovereignty, that determination is final. The idea that a district court judge in New York should overrule the White House on whether the ICC is a threat is a terrifying proposition for anyone who actually understands the separation of powers.
| Legal Claim by Plaintiffs | Geopolitical and Legal Reality |
|---|---|
| Sanctions violate First Amendment rights to give legal advice. | Holder v. Humanitarian Law Project allows restrictions on foreign-facing professional speech. |
| The ICC is not a threat under IEEPA standards. | The executive branch has sole discretion to define foreign threats. |
| Sanctions arbitrarily target individuals without due process. | OFAC licensing processes provide the constitutionally required recourse. |
The Sovereign Redline the Court Dodged
Let’s talk about the actual target of these sanctions. The ICC was established by the Rome Statute. The United States is not a party to the Rome Statute.
We specifically, intentionally, and repeatedly refused to join. Under President Bill Clinton, the US signed the treaty but expressed deep reservations. Under President George W. Bush, the US effectively unsigned it. Congress even passed the American Service-Members' Protection Act (informally known as the Hague Invasion Act) to protect US personnel from the court's overreach.
The sovereign stance of the United States has been consistent across both Democratic and Republican administrations for decades: the ICC has no jurisdiction over US citizens because the US never consented to it.
Yet, the ICC prosecutor attempted to assert jurisdiction over US personnel for actions in Afghanistan. This was a direct assault on the concept of state consent—the bedrock of international law.
The Trump administration’s sanctions were not a temper tantrum. They were a necessary, aggressive enforcement of a long-standing redline. If a foreign body attempts to bypass state consent and prosecute your citizens, you do not write them a polite letter. You shut down their access to the global financial system.
The academic plaintiffs who sued the government wanted to ignore this entire geopolitical context. They wanted to pretend their right to submit an amicus brief to the Hague was more important than the state's duty to protect its soldiers from non-consensual foreign prosecution. It was a breathtaking display of professional narcissism.
The OFAC Licensing Escape Hatch
One of the most dishonest aspects of the legal challenge against the sanctions was the claim that the executive order left US citizens completely helpless, facing ruinous fines for simply talking about the law.
This ignored the existence of the OFAC licensing mechanism.
If you are an American citizen or organization and you have a legitimate, constitutionally protected reason to interact with a sanctioned entity, you do not sue the government immediately. You apply for an OFAC license. OFAC routinely issues both general and specific licenses allowing everything from humanitarian aid delivery to legal representation in sanctioned jurisdictions.
The plaintiffs did not want to apply for licenses. Why? Because applying for a license means acknowledging the government's authority to regulate the transaction. They wanted to establish a sweeping constitutional privilege that would exempt international lawyers from the national security apparatus entirely.
If the courts had accepted their argument, it would have created a massive loophole in the US sanctions regime. Any individual or group wanting to assist a sanctioned foreign entity could simply package their assistance as "academic advocacy" or "legal education" and claim First Amendment immunity. The entire sanctions framework—the primary tool of US foreign policy short of military action—would have been permanently compromised.
Geopolitics Trumps Academic Ambition
When President Biden revoked the ICC sanctions in 2021, the legal academy cheered, claiming victory and acting as though the status quo of global justice had been restored. But the Biden administration did not revoke them because they thought the sanctions were unconstitutional. They revoked them because they preferred a different diplomatic strategy.
In fact, the Biden State Department explicitly reiterated its strong opposition to the ICC’s attempts to assert jurisdiction over personnel of non-states parties like the United States and Israel. The policy goal remained identical; only the tactical execution changed.
This proves that the entire issue was always a political and diplomatic dispute, not a constitutional crisis.
The lawsuit was a symptom of a deeper disease in the legal profession: the belief that international institutions possess a moral authority that supersedes domestic constitutional structures. The lawyers who sued the government were not defending the First Amendment; they were attempting to use the First Amendment as a weapon to shield an international court from the consequences of its own geopolitical overreach.
The lesson here is harsh but necessary. If you choose to work with foreign institutions that actively target the sovereignty of the United States, you do not get to wrap yourself in the American flag when the government cuts off your access to those institutions. You made your choice. Do not expect the Constitution to bail you out.
