Contrary to National Security: The Rise of Entity List in U.S. Policy Towards China and Its Role in the National Security Administrative State

Jacob Aaron Pagano*

Among the myriad policies the United States administers to address national security challenges posed by China, few have drawn as much attention and ire in recent years as the Entity List.  The Entity List is a list of foreign parties, including corporations, and universities, prohibited—on national security grounds—from receiving certain U.S. technology, such as high-performance computers and surveillance equipment.  The list has acutely impacted U.S.-China relations, restricting U.S. exporters’ access to China’s massive market and leading to notable legal contests, including Chinese entities tapping U.S. law firms to seek removal from the list and U.S. companies asserting the list violates a due process right to conduct business overseas.

Notwithstanding these concerns, the Entity List remains poorly understood.  Its governing regulations are hard to navigate.  Further, while the list has been active since 1997, it is now far more expansive and rigorously enforced than at its founding, with 180 Chinese entities added in 2020 alone.  Against this backdrop, this Note outlines how the Entity List developed into a key tool in U.S. strategy to address national security concerns regarding China.  It argues that the list marks an effective strategy within a broader trend whereby administrative agencies routinely issue national security-justified decisions targeting entities.  But challenges remain, including minimal administrative recourse for affected parties and negligible review by the federal judiciary.  Addressing these, this Note proposes reforms to promote an understanding of how the list works, minimize litigation, and reduce negative trade impacts. 

*Thank you sincerely to Professor Benjamin L Liebman for serving as the primary faculty advisor on this project; to Judge Timothy M. Reif for illuminating paths and challenges in international trade; and to UCLA Law Professor Richard Steinberg for directing me to this topic in spring of 2021. I wish also to express gratitude to my friends and family for their immeasurable graciousness and kindness during and beyond this project, most especially, Nina Juliette Barramed-Shallman, aka Niina Soleil; my parents, Florence Mansbach (Pagano) and Christopher Pagano, and sister, Leah Pagano; and my grandfather Peter Mansbach, whose wisdom redounds. Thank you also to the community at Columbia Law School, with special thanks to Matthew Cutts for his consistency of friendship; to Wisdom Onwuchekwa-Banogu for his incomparable invitations (to dinner gatherings) and editorial work on this Note; and to Mingyu Tang and Molly Bodurtha for their editorial suggestions.