Document Type

Article

Disciplines

International Law

Abstract

The Commerce Clause of the United States Constitution' gives Congress the power to regulate commerce with foreign nations. In its exercise of this power Congress has enacted many overlapping statutes regulating exports from the United States. Exporting is generally considered a privilege rather than a right, although there is a "strong presumption that citizens should be free to engage in international commerce except in instances where regulation is clearly needed to advance important public interests."' These public interests include the regulation of materials of war; the United States has long had a policy of controlling the export of arms, commodities and technology of strategic and military significance.

Two overlapping statutes control the implementation of this policy: the Arms Export Control Act of 1976 [AECA], and the Export Administration Act of 1979 [EAA].'The AECA specifically regulates the export of defense articles and services; the EAA controls extend to technologies which have civilian as well as military application.7 Both acts use a licensing system to control exports, and make the transfer of goods and data across national borders without an appropriate license the basis for the imposition of severe criminal and administrative sanctions.

Violators of the AECA or the EAA may be subject to criminal liability, administrative sanctions, or both. The Secretary of Commerce is the final arbiter in administrative cases; his decisions are exempt from judicial review.8 This wide grant of discretion raises serious due process concerns. This comment examines the structure of United States export control laws and outlines the sanctions available under these laws. The comment then analyzes the constitutional challenges to the administrative system of adjudication which imposes fines and penalties yet precludes judicial review, and concludes that such an exemption should be abandoned as it operates to deprive those persons accused of violating the export statutes the due process required by the fifth amendment.

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