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1 1 (September 6, 2023)

handle is hein.crs/govemtd0001 and id is 1 raw text is: \Congressional_______ ah esearch Service National Security Review Bodies (Part II): Creating New Review Systems September 6, 2023 Some observers and Members of Congress have advocated for new or expanded national security review frameworks to examine transactions that may not be subject to existing procedures. Proposals in the 118th Congress include legislation that would require additional notification of outbound investment and expand the government's authority to review certain foreign investments in agricultural land and in agriculture-related U.S. businesses. In addition to policy debates about the merits of individual programs, creating or expanding national security systems can raise legal issues about the programs' structure and operations. This Legal Sidebar is the second installment in a two-part series examining legal frameworks authorizing the United States to regulate private commercial transactions to address national security risks. The first installment analyzes the legal frameworks governing export controls, sanctions administered by the Office of Foreign Asset Control (OFAC), the Committee on Foreign Investment in the United States (CFIUS), and sector-specific review bodies. This installment discusses legal issues that could arise from proposals to expand or create new review mechanisms. Procedural Due Process The Due Process Clause of the Constitution's Fifth Amendment requires, among other things, that the government provide a person deprived of a property right with notice of the government action and a meaningful opportunity to contest it. This requirement-known as procedural due process-can be relevant in legal challenges to national security reviews. For example, the U.S. Court of Appeals for the District of Columbia Circuit held that, before the President can order a company to divest an acquisition under the CFIUS process, due process requires the government to provide the affected company with the unclassified information on which it based its decision and an opportunity to respond. In challenges to designations on OFAC lists, by contrast, courts have concluded that the government's interest in national security outweighed litigants' needs for a pre-deprivation hearing and access to classified information supporting the designation. Judicial Review An issue related to due process is the extent to which those affected by national security review bodies' actions can seek judicial review. Some review bodies' decisions, such as OFAC licensing decisions, are Congressional Research Service https://crsreports.congress.gov LSB11035 CRS Legal Sidebar Prepared for Members and Committees of Congress

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