•  
  •  
 

Abstract

National security list designations have emerged as a prominent feature of U.S. foreign policy, directly targeting individuals and entities through administrative channels. Programs such as the SDN List, the Entity List, and the 1260H List deliberately restrict access to financial resources and critical technologies, functioning in practice as de facto sanctions. These lists span a regulatory spectrum, differing in statutory bases, policy objectives, and severity of consequences, but all share the common feature of making delisting extremely difficult. A series of cases demonstrates that such barriers stem primarily from the limited applicability of the Administrative Procedures Act (APA) in the national security context. Most national security list designations escape substantive judicial review, especially given that Entity List decisions are explicitly excluded from APA coverage. Compounding the problem, many designated parties are foreign companies, which prevents them from bringing constitutional claims when APA arguments prove ineffective.

Despite these obstacles, several encouraging victories illustrate the conditions under which courts are willing to intervene. Court decisions such as Xiaomi, Van Loon, and Ninestar demonstrate that inadequate administrative records, statutory overreach, or procedural opacity can open narrow but meaningful pathways to relief. These outcomes resonate with the European Union’s more structured approach, where courts ensure broad access to justice regardless of nationality and apply a concrete standard of review that requires reason-giving, disclosure of evidence (including mechanisms for handling classified material), and a substantive threshold of proof.

Taken together, the U.S. needs a more balanced framework for national security list designations. Judicial review under the APA should serve as the baseline safeguard, reinforced by constitutional protections where appropriate. Meaningful reason-giving requirements would ensure that oversight is not merely symbolic. Properly designed, a more disciplined and transparent framework would not weaken U.S. national security but instead strengthen the credibility and effectiveness of its foreign policy by aligning it more closely with general rule-of-law principles and international legitimacy.

Download

Share

COinS