Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977.[1] The FCPA governed domestic business conduct with foreign government officials in foreign markets.[2] Generally, the FCPA prohibits bribes to foreign officials to obtain or retain business.[3] The statute applies to publicly traded companies and their agents.[4] To do so, the FCPA requires issuers to maintain accurate books and records to disclose potential payments to foreign officials.[5] In 2024 alone, the Department of Justice (DOJ)  and the Securities and Exchange Commission (SEC) obtained over $1.28 billion in total fines and penalties relating to the FCPA.[6]

On February 10, 2025, President Donald Trump issued an executive order suspending enforcement of the FCPA for 180 days.[7] The Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, exceeds presidential authority. While the executive branch enjoys broad discretion in how it enforces federal law, the wholesale suspension of enforcement of the FCPA for 180 days exceeds the President’s Article II authority. The Constitution’s Take Care Clause says the president “shall take Care that the Laws be faithfully executed.”[8] By ordering the Department of Justice to halt all new FCPA cases and reorient ongoing ones, the president has effectively nullified a statute enacted by Congress, and therefore, has exceeded his presidential authority.

Youngstown Sheet provides that when the president acts contrary to Congress’s expressed will, his power is “at its lowest ebb.”[9] Here, Congress explicitly enacted the FCPA to combat foreign bribery by American companies.[10] Legislative power rests with Congress, not the president. As the Constitution states, “All legislative Powers herein granted shall be vested in a Congress.”[11] The statute establishes no presidential authority to suspend enforcement.[12] By pausing all new investigations absent of approval from the Attorney General, the executive order directly contravenes Congress’s design and therefore falls squarely into Youngstown’s category three.[13] In other words, President Trump’s executive order contradicts the express and implied will of Congress.

The executive order cannot simply cite prosecutorial discretion, foreign affairs powers, and national security to mask its unconstitutionality. Prosecutorial discretion cannot be read so broadly as to permit the categorical nullification of an entire class of statutory enforcement. Nor can foreign affairs powers displace clear congressional legislation. The executive order ensures that the FCPA is not enforced in a manner that “harms American economic competitiveness and, therefore, national security.”[14] The president cannot broadly, without foundation, invoke national security as an excuse to not “Care that the Laws be faithfully executed.”[15] Congress had already spoken on the issue when Congress passed the FCPA in 1977.[16] The President may not contradict Congress by invoking vague “national security” rationales. This is not permitted under Youngstown’s category three.[17] If “national security” were enough, any president could decline to enforce laws passed by Congress that he or she disagrees with simply by asserting that strict enforcement undermines security.

The Deputy Attorney General issued new enforcement guidelines in its June 2025 memorandum, concluding the 180-day suspension.[18] The memorandum redirected prosecutors to focus on cartel-linked corruption, strategic infrastructure, and “serious misconduct” while avoiding “routine business practices.”[19] These guidelines fundamentally reshape how the FCPA will be enforced. They even require that all new investigations be approved by the Assistant Attorney General or higher.[20] This narrowed the statute to fit the President’s policy views. This is not faithfully executing the law. It is presidential rewriting of the law.

The Department of Justice admittedly has broad discretion in its enforcement based on its limited resources. The government cannot prosecute every violation of the FCPA. Prosecutorial discretion is arguably murky. At a minimum, an executive order categorically suspending a congressionally passed statute from any enforcement for 180-days is unconstitutional. The harder question is whether the new enforcement guidelines simply constitute prosecutorial discretion based on the Department of Justice’s limited resources. The correct analysis is whether the new guidelines set out by the Justice Department’s enforcement of the FCPA are fundamentally different from the FCPA’s text and original intent passed by Congress. If these two things are so fundamentally different, then this is no longer prosecutorial discretion, but executive rewriting of the law that infringes Congress’s legislative authority. In other words, if the DOJ changes the enforcement of FCPA so fundamentally, then prosecutorial discretion is no longer part of the equation. It is no longer discretionary if a law is, in effect, rewritten. The new FCPA enforcement guidelines focus on cartel activity, which is fundamentally different than the FCPA’s original purpose, to have a statutory scheme to deal with companies bribing foreign officials.[21]

Overall, the executive order exceeds presidential authority. In other words, the president is exercising legislative authority instead of executing the law. By halting enforcement of the FCPA, President Trump exceeded his Article II authority and violated the Take Care Clause. The DOJ memorandum implementing the order confirms this overreach by substituting presidential policy preferences for congressional command. Legislative power rests with Congress, not the president. Therefore, Executive Order 14209 is unconstitutional.

[1] Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1–78dd-3 (2024).

[2] Mike Koehler, The Story of the Foreign Corrupt Practices Act, 73 Ohio St. L. J. 929, 929 (2012).

[3] Foreign Corrupt Practices Act (FCPA), U.S. SEC (Sep. 13, 2023), https://www.sec.gov/enforcement/foreign-corrupt-practices-act [https://perma.cc/5DFR-QPG2].

[4] Id.

[5] Id.

[6] Cuneyt A. Akay, FCPA Year in Review 2024, GreenbergTraurig (Jan. 29, 2025), https://www.gtlaw.com/en/insights/2025/1/fcpa-year-in-review-2024 [https://perma.cc/3E5B-D6GG]; SEC Enforcement Actions: FCPA Cases, U.S. SEC (July 21, 2025), https://www.sec.gov/about/divisions-offices/division-enforcement/enforcement-topics-initiatives/sec-enforcement-actions-fcpa-cases [https://perma.cc/7EXP-CTCY].

[7] Exec. Order No. 14209, 90 Fed. Reg. 9587 (Feb. 10, 2025).

[8] U.S. Const. art. II, § 3.

[9] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

[10] See generally Koehler, supra note 2.

[11] U.S. Const. art. I, § 1.

[12] 15 U.S.C. §§ 78dd-1–78dd-3.

[13] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[14] Exec. Order No. 14209, 90 Fed. Reg. at § 1.

[15] U.S. Const. art. II, § 3.

[16] 15 U.S.C. §§ 78dd-1–78dd-3.

[17] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[18] Memorandum from Deputy Att‘y Gen. Todd Blanche to Head of Crim. Dep‘t (June 9, 2025), https://www.justice.gov/dag/media/1403031/dl?inline [https://perma.cc/ZF4F-JC5B].

[19] Id.

[20] Id.

[21] See generally Koehler, supra note 2.