{"id":1802,"date":"2026-04-14T08:08:01","date_gmt":"2026-04-14T12:08:01","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/?page_id=1802"},"modified":"2026-04-14T08:08:01","modified_gmt":"2026-04-14T12:08:01","slug":"cfius-gone-wild-the-need-for-accountability-measures-to-protect-foreign-direct-investment-in-the-united-states","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/in-print\/volume-38-issue-4-fall-2025\/cfius-gone-wild-the-need-for-accountability-measures-to-protect-foreign-direct-investment-in-the-united-states\/","title":{"rendered":"CFIUS Gone Wild: The Need for Accountability Measures to Protect Foreign Direct Investment in the United States"},"content":{"rendered":"

Throughout its existence, the Committee on Foreign Investment in the United States (CFIUS) has largely acted in secrecy and without traditional measures of accountability present in administrative law such as strong judicial review, strict congressional mandate, and requirements to explain its actions. Under the guise of national security, the Committee has become a gatekeeper for who can and cannot invest in the United States economy through review of foreign mergers, acquisitions, and takeovers of American corporate entities. What started as a small information-gathering taskforce in the 1970s under President Ford has grown into the primary tool with which we regulate foreign direct investment (FDI) in the United States.\u00a0<\/span><\/p>\n

CFIUS acts largely through a combination of voluntary and mandatory filings in which foreign investors submit proposed mergers, acquisitions, and takeovers for determinations of whether the United States has national security concerns with the transaction. The Committee reviews the transaction, potentially initiates an investigation, engages in mitigation negotiations with the corporate entities involved, and makes final recommendations to the President on whether to block the transaction or allow the transaction to proceed. In practice, recommendations typically only make it to the President if at least some of the Committee believes that the transaction poses national security concerns. If there are no such concerns, the Committee typically grants permission to the foreign investor to proceed with the transaction. The Committee largely acts proactively before transactions are finalized, but they can also review completed transactions and recommend that the President undo them if they present national security concerns.\u00a0<\/span><\/p>\n

CFIUS is enormously influential in FDI in the United States because it largely controls who can join the party. While it only has jurisdiction over transactions that concern national security, the scope of that definition has widened significantly with recent legislation. The review process is complex and exhaustive, which creates an obstacle that can deter foreign investors from even attempting to engage in a transaction.<\/span> The President has only blocked five transactions since the creation of CFIUS. However, CFIUS\u2019s reach must be judged not by looking at the number of blocked transactions but by the number of CFIUS filings and declarations that have been withdrawn due to negative reactions of CFIUS members and failed mitigation efforts. In 2023, there were 233 written notices of transactions filed with CFIUS and fifty-seven of these notices were withdrawn.<\/span> Fourteen of those that were withdrawn were immediately abandoned for commercial reasons or after CFIUS and the parties were unable to reach a mitigation agreement.<\/span>\u00a0<\/span><\/p>\n

The need for CFIUS accountability measures is both urgent and necessary to maintain FDI in the United States which is vital to economic growth and prosperity. Lack of accountability measures and transparency leaves CFIUS vulnerable to being used for political gain instead of for its primary purpose of maintaining national security.<\/span> For example, consider the\u00a0 recent public spectacle of CFIUS\u2019s investigation in Nippon Steel\u2019s takeover of U.S. Steel.<\/span> There was very little published information about why there would be a national security threat; however, there was significant information published signaling a political upside to blocking the transaction.<\/span> America witnessed the lack of transparency front and center. Under the new Trump Administration, which is likely to have isolationist preferences, CFIUS could become a tool to cordon off the United States from the rest of the world, and under the current scheme, there is little the other branches can do to curb that power.<\/span><\/p>\n

This paper explores how CFIUS\u2019s structure and the legislature\u2019s expansive delegation of authority to the Committee has created an administrative scheme that lacks proper accountability mechanisms to prevent extensive overreach in FDI. Part I provides a historical overview of the development of CFIUS and an explanation of the current legislative framework that CFIUS operates under. Part II evaluates the failures of the CFIUS legislation to implement meaningful accountability mechanisms. Finally, Part III proposes some possible steps forward, including increased legislative oversight and possible legal challenges to CFIUS action, followed by a brief conclusion.<\/span><\/p>\n

Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Throughout its existence, the Committee on Foreign Investment in the United States (CFIUS) has largely acted in secrecy and without traditional measures of accountability present in administrative law such as […]<\/p>\n","protected":false},"author":14207,"featured_media":0,"parent":1755,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-1802","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1802","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/users\/14207"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/comments?post=1802"}],"version-history":[{"count":1,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1802\/revisions"}],"predecessor-version":[{"id":1804,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1802\/revisions\/1804"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1755"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/media?parent=1802"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}