Elena Chachko (UC Berkeley School of Law) has posted IEEPA Overextension and the First Amendment (Harvard Law Review Blog) on SSRN. Here is the abstract:
On May 13, 2026, Judge Leon of the D.C. District Court temporarily enjoined on First Amendment grounds U.S. financial sanctions and travel restrictions against Francesca Albanese, the U.N. Special Rapporteur on human rights in Gaza and the West Bank. Albanese was sanctioned under a 2025 Executive Order against those who facilitate International Criminal Court (ICC) efforts to prosecute U.S. and allied individuals, including Israeli officials.
Regardless of what one might think about the substance of Albanese’s views, L.C. v. Trump is cause for celebration for those who believe it is a very bad idea for the United States to use the draconian instrument of individual economic sanctions against international officials for acting in their formal capacities. The case also highlights the substantial risks for the government in pursuing sanctions that strongly implicate the First Amendment, and the willingness of reviewing courts to push back.
Yet recent judicial efforts to scale back ICC-related sanctions are in tension with Supreme Court precedent. In Holder v. Humanitarian Law Project, the Court held that the First Amendment did not bar Congress from criminalizing coordinated support, including speech-based support, for organizations the U.S. government had designated as national security threats. A similar issue arises here with respect to Albanese’s support for the ICC. The D.C. Circuit has already temporarily stayed the District Court’s ruling and reinstated sanctions against Albanese.
But while Holder makes L.C. v. Trump and related rulings vulnerable on the law, cases like Albanese’s call for distinguishing that precedent. As the executive overextends economic sanctions in ways that increasingly implicate speech and domestic interests, the assumptions that supported heavy judicial deference to the government’s national security argument in Holder should be revisited.
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