Regan v. WaldAnnotate this Case
468 U.S. 222 (1984)
U.S. Supreme Court
Regan v. Wald, 468 U.S. 222 (1984)
Regan v. Wald
Argued April 24, 1984
Decided June 28, 1984
468 U.S. 222
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
Treasury Department Regulation 201(b), first promulgated in 1963 as part of the Cuban Assets Control Regulations, prohibits any transaction involving property in which Cuba, or any national thereof, has "any interest of any nature whatsoever, direct or indirect." Regulation 560, which was added to the Regulations in 1977, embodied a general license permitting, for the most part, travel-related economic transactions with Cuba, thus exempting such transactions from Regulation 201(b)'s broad prohibition. But in 1982, Regulation 560 was amended to curtail such general license by permitting only certain types of travel, such as official visits, news gathering, and visits to close relatives, and excluding general tourist and business travel. At the time Regulation 201(b) was promulgated, § 5(b) of the Trading With the Enemy Act (TWEA) gave the President broad authority to impose comprehensive embargoes on foreign countries as one means of dealing with both peacetime emergencies and times of war. The Cuban Assets Control Regulations constitute such an embargo. Section 5(b) was amended in 1977 to limit the President's power under the TWEA to times of war, but at the same time, the International Emergency Economic Powers Act (IEEPA) was enacted to cover the President's exercise of emergency economic powers in response to peacetime crises, § 203 of that Act granting essentially the same authorities to the President as those in § 5(b) of TWEA. However, rather than requiring the President to declare a new national emergency in order to continue existing economic embargoes, such as that against Cuba, Congress enacted a grandfather clause providing that, notwithstanding the amendment to TWEA, the "authorities conferred upon the President" by § 5(b), which were being exercised with respect to a country on July 1, 1977, as a result of a national emergency declared by the President before such date, "may continue to be exercised." Respondents, American citizens who are inhibited from traveling to Cuba by Regulation 201(b), brought an action in Federal District Court, challenging the 1982 amendment to Regulation 560 and seeking a preliminary injunction against its enforcement. The District Court refused to issue the injunction on the ground that respondents had not demonstrated a substantial likelihood of success on the merits. The Court of
Appeals, holding that the challenged amendment lacked statutory authority, vacated the District Court's order and remanded with instructions to issue the injunction.
1. The grandfathered authorities of § 5(b) of TWEA provide an adequate statutory basis for the challenged 1982 amendment to Regulation 560. Pp. 468 U. S. 232-240.
(a) The language of the grandfather clause, read in conjunction with § 5(b), supports the conclusion that, in the relevant sense, the "authority" to regulate all property transactions with Cuba, including travel-related transactions, was being exercised on July 1, 1977, and was, therefore preserved. Since the authority to regulate travel-related transactions was among the "authorities conferred upon the President" by § 5(b) that were "being exercised" with respect to Cuba on July 1, 1977, it follows from a natural reading of the grandfather clause that the authority to regulate such transactions "may continue to be exercised" with respect to Cuba after that date. And since the President's authority under § 5(b) to regulate by means of licenses includes the authority to "prevent or prohibit" as well as the authority to "direct and compel," it also follows that the grandfather clause constitutes adequate statutory authority for the 1982 amendment of Regulation 560, the practical effect of which was to prevent travel to Cuba. Pp. 468 U. S. 232-236.
(b) Neither the legislative history of the grandfather clause nor its purpose of keeping IEEPA and the amendments to TWEA from being too controversial supports the view that Congress meant to grandfather only those restrictions actually in place on July 1, 1977. Eliminating the President's authority to modify existing licenses in response to heightened tensions with Cuba would have sparked just the sort of controversy the grandfather clause was designed to avoid. Pp. 468 U. S. 236-240.
2. The restrictions on travel-related transactions with Cuba imposed by the 1982 amendment to Regulation 560 do not violate the freedom to travel protected by the Due Process Clause of the Fifth Amendment. Cf. Zemel v. Rusk,381 U. S. 1. Given the traditional deference to executive judgment in the realm of foreign policy, there is an adequate basis under the Due Process Clause to sustain the President's decision to curtail, by restricting travel, the flow of hard currency to Cuba that could be used in support of Cuban adventurism. Pp. 468 U. S. 240-243.
708 F.2d 794, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and POWELL,
JUSTICE REHNQUIST delivered the opinion of the Court.
Respondents are American citizens who want to travel to Cuba. They are inhibited from doing so by a Treasury Department regulation, first promulgated in 1963, which prohibits any transaction involving property in which Cuba, or any national thereof, has "any interest of any nature whatsoever, direct or indirect." 31 CFR § 515.201(b) (1983) (Regulation 201(b)). For a period of about five years, "transactions ordinarily incident to" travel to and from as well as within Cuba were, with some limitations, exempted from the broad prohibition of Regulation 201(b) by a general license. See 31 CFR § 515.560 (1983). But this general license was amended in 1982, and the scope of permissible economic transactions in connection with travel to Cuba was significantly narrowed. 47 Fed.Reg. 17030 (1982).
Respondents challenged the amendment to the general license on constitutional and statutory grounds and sought a preliminary injunction against its enforcement. The District Court for the District of Massachusetts concluded that respondents had not demonstrated a substantial likelihood of
success on the merits and refused to issue the injunction. App. to Pet. for Cert. 22a. On appeal taken by respondents, the Court of Appeals for the First Circuit, concluding that the challenged amendment lacked statutory authority, vacated the District Court's order and remanded with instructions to issue the preliminary injunction. 708 F.2d 794 (1983). We granted the Government's application for a stay of the mandate, 463 U.S. 1223 (1983), as well as the petition for certiorari, 464 U.S. 990 (1983), and now reverse the judgment of the Court of Appeals.
Regulation 201(b) was promulgated in 1963 as part of the Cuban Assets Control Regulations, 31 CFR pt. 515 (1963), implemented under the Trading With the Enemy Act of 1917 (TWEA), 40 Stat. 411, as amended, 50 U.S.C.App. § 1 et seq.See 28 Fed.Reg. 6974 (1963). [Footnote 1] At that time, § 5(b) of TWEA gave the President broad authority to impose comprehensive embargoes on foreign countries as one means of
dealing with both peacetime emergencies and times of war. [Footnote 2] The Cuban Assets Control Regulations constitute such an embargo. [Footnote 3] They were originally adopted to deal with the peacetime emergency created by Cuban attempts to destabilize governments throughout Latin America. See Presidential Proclamation No. 3447, 3 CFR 157 (1959-1963 Comp.). [Footnote 4]
"[E]xcept as specifically authorized by the Secretary of the Treasury," Regulation 201(b) prohibits all
"transactions involv[ing] property in which [Cuba], or any national thereof, has . . . any interest of any nature whatsoever, direct or indirect. . . ."
31 CFR § 515.201(b) (1983).
In 1977, Regulation 560 was added to the Cuban Assets Control Regulations. See 31 CFR § 515.560 (1977). [Footnote 5] Regulation 560 embodied a general license permitting "persons who visit Cuba to pay for their transportation and maintenance expenditures (meals, hotel bills, taxis, etc.) while in Cuba." 42 Fed.Reg. 16621 (1977). Thus, travel-related economic transactions with Cuba were, for the most part, exempted from the complete embargo of Regulation 201(b). [Footnote 6] All persons engaging in travel-related transactions, however, were required to make "a full and accurate record of each such transaction" and to keep those records available for inspection for at least two years. § 515.601. And the general license contained in Regulation 560 was subject to revocation or modification "at any time." § 515.805.
Later in 1977, § 5(b) of TWEA was amended to limit the President's power to act pursuant to that statute solely to times of war. [Footnote 7] In the same bill, a new law was enacted to
cover the President's exercise of emergency economic powers in response to peacetime crises. International Emergency Economic Powers Act (IEEPA), Title II, Pub.L. 95-223, 91 Stat. 1626 et seq., codified at 50 U.S.C. § 1701 et seq. The authorities granted to the President by § 203 of IEEPA are essentially the same as those in § 5(b) of TWEA, [Footnote 8] but the conditions and procedures for their exercise are different.
Section 202(a) of IEEPA provides that the authorities granted the President by § 203
"may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat."
50 U.S.C. § 1701(a). The President is also required, "in every possible instance," to consult with Congress prior to exercising his IEEPA authorities and, once such authorities have been exercised, to report to Congress every six months on the actions taken and any changes in the underlying circumstances. § 1703. [Footnote 9]
However, rather than requiring the President to declare a new national emergency in order to continue existing economic embargoes, such as that against Cuba, Congress decided to grandfather existing exercises of the President's "national emergency" authorities. Section 101(b) of Public Law 95-223 provides:
"Notwithstanding the amendment made by subsection (a), the authorities conferred upon the President by section 5(b) of the Trading With the Enemy Act, which
were being exercised with respect to a country on July 1, 1977, as a result of a national emergency declared by the President before such date, may continue to be exercised with respect to such country. . . ."
91 Stat. 1625, note following 50 U.S.C.App. § 5.
This grandfather provision also provided that
"[t]he President may extend the exercise of such authorities for one-year periods upon a determination for each such extension that the exercise of such authorities with respect to such country for another year is in the national interest of the United States."
Ibid. Presidents Carter and Reagan, in each of the years since TWEA was amended, have determined that the continued exercise of § 5(b) authorities with respect to Cuba is in the national interest. [Footnote 10]
In 1982, in order to "reduce Cuba's hard currency earnings from travel by U.S. persons to and within Cuba," Regulation 560 was amended to curtail the general license permitting travel-related economic transactions. 47 Fed.Reg. 17030 (1982). [Footnote 11] As amended, Regulation 560 only licenses travel-related economic transactions in connection with certain types of travel, such as official visits, news gathering, professional research, and visits to close relatives. 31 CFR § 515.560(a)(1) (1983). "[F]ully sponsored or hosted travel," which does not involve any economic benefit to Cuba, is also permitted. § 515.560(j). General tourist and business
travel, however, is specifically excluded from the authorization contained in the general license. § 515.560(a)(3). [Footnote 12]
As noted, respondents challenged the amendment to Regulation 560 on a number of statutory and constitutional grounds. Most important of these contentions, and the only one passed on by the court below, is the claim that the amendment is invalid because it was not promulgated in accordance with the procedures mandated by IEEPA. [Footnote 13] The Government agrees that it did not follow the procedures set out in IEEPA when it amended Regulation 560, but relies for statutory authority for the amendment on the grandfather clause of Public Law 95-223, which preserved those "authorities . . . being exercised" pursuant to § 5(b) of TWEA on July 1, 1977. The Government argues that the "authority" to regulate travel-related transactions with Cuba was being exercised on July 1, 1977, as part of the general regulation of property transactions contained in Regulation 201(b). Thus, even though most such transactions were not actually prohibited on July 1 because of the general license, the Government contends that the President's authority to prohibit them was preserved.
The Court of Appeals gave three reasons for rejecting the Government's argument based, in turn, on the plain language, the legislative history, and the underlying purpose of the 1977 amendment to TWEA. [Footnote 14] First, "as a matter of com
mon sense and common English," the court stated, restricting commodity purchases and restricting travel purchases would seem to be very different "exercises" of authority -- "different enough at least not to count as the exercise of the same authority." 708 F.2d at 796. Thus, since "the government was not restricting travel to Cuba" on July 1, 1977, its authority to do so was not grandfathered. Ibid. Second, the court thought that the legislative history showed that Congress intended the grandfather clause to be narrowly interpreted to allow the President to continue in effect only those specific "restrictions" actually in place on July 1, 1977. "It did not want the existence of one sort of TWEA restriction in 1977 to serve as a justification for imposing a new one." Id. at 798.
Finally, the Court of Appeals concluded that the purpose behind the grandfather clause was solely to preserve current restrictions as bargaining chips in negotiations with the affected countries. To require the President to announce publicly a new declaration of emergency in order to preserve existing restrictions on transactions with those countries might have undesirable ramifications. On the other hand, simply to abandon the restrictions without any quid pro quo could be equally undesirable. Thus, the grandfather clause allowed current restrictions to remain in place. But, the court concluded, it would go beyond the purposes of the clause to permit the President to augment his bargaining powers by adding new restrictions. Id. at 799-800. [Footnote 15]
We find the reasoning of the Court of Appeals ultimately unconvincing on all three counts. The language of the grandfather clause, read in conjunction with § 5(b) of TWEA, supports the Government's contention that, in the relevant sense, the "authority" to regulate all property transactions with Cuba, including travel-related transactions, was being "exercised" on July 1, 1977, and was, therefore, preserved. And neither the legislative history nor the apparent purpose of the 1977 Act sufficiently supports the contrary contention that what Congress actually intended, despite the statutory language, was to freeze existing restrictions, so that any adjustment of pending embargoes would require the declaration of a new "national emergency" under the procedures of IEEPA.
The grandfather clause in Public Law 95-223 refers to the "authorities conferred upon the President by section 5(b) of the Trading with the Enemy Act." Among those authorities is the authority to "regulate . . . any . . . transactions involving . . . any property in which any foreign country or any national thereof has had any interest." 50 U.S.C.App. § 5(b). Section 5(b) draws no distinction between the President's authority over travel-related transactions and his authority over other property transactions. For purposes of TWEA, it is clear that the authority to regulate travel-related transactions is merely part of the President's general authority to regulate property transactions. [Footnote 16] Thus, there is
no basis for the Court of Appeals' conclusion, drawn without reference to the actual language of TWEA, that the regulation of travel-related purchases must be based on a separate authority from that governing the regulation of other transactions involving property. In fact, they are based on the same authority. [Footnote 17]
It is also clear that the President's authority to regulate property transactions with Cuba and Cubans was being exercised on July 1, 1977. Regulation 201(b), which was in force on July 1, 1977, and continues in full force and effect today, explicitly prohibits, except as specifically authorized by the Secretary of the Treasury, all transactions involving property
in which Cuba or Cuban nationals have "any interest of any nature whatsoever, direct or indirect." 31 CFR § 515.201(b) (1983). Thus, absent an explicit license, all transactions involving Cuban property are and, at all relevant times, have been prohibited.
On July 1, 1977, most travel-related transactions with Cuba and Cuban nationals were permitted by a general license. But that does not change the fact that the President was exercising his § 5(b) authorities with respect to those transactions. Section 5(b) specifically states that the authorities granted therein may be exercised "by means of instructions, licenses, or otherwise." On July 1, 1977, the President was exercising his authority over travel-related transactions with Cuba and Cubans by means of a general license which exempted them from the categorical prohibition of Regulation 201(b).
At that time, travel-related transactions involving Cuban property were still subject to the recordkeeping requirements of 31 CFR § 515.601 (1977). Other restrictions were also imposed. Seen 6, supra. And the general license was expressly subject to revocation, amendment, or modification "at any time." § 515.805. Thus, travel-related transactions "were specifically made subordinate to further actions which the President might take. . . ." Dames & Moore v. Regan,453 U. S. 654, 453 U. S. 673 (1981). And when the general license was amended in 1982, so that most travel-related transactions were no longer specifically authorized, such transactions automatically became subject, once again, to the prohibition of Regulation 201(b). [Footnote 18]
Since the authority to regulate travel-related transactions was among those "authorities conferred upon the President" by § 5(b) of TWEA "which were being exercised" with respect to Cuba on July 1, 1977, it seems to us to follow from a natural reading of the grandfather clause that the authority to regulate such transactions "may continue to be exercised" with respect to Cuba after that date. Pub.L. 95-223, § 101(b), 91 Stat. 1625. And since the President's authority under § 5(b) to regulate by means of licenses includes the authority to "prevent or prohibit," as well as the authority to "direct and compel," 50 U.S.C.App. § 5(b)(1)(B), it also follows that the grandfather clause constitutes adequate statutory authority for the 1982 amendment to the general license, the practical effect of which was to prevent travel to Cuba.
A contrary, more constricted reading of the grandfather clause does undue violence to the words chosen by Congress. The clause refers to "authorities" being exercised on July 1, 1977, not to "prohibitions" actually in place on that date. And it provides that those authorities "may continue to be
exercised." If Congress had wished to freeze existing restrictions, it could easily have done so explicitly. The fact that it did not do so, but instead used the generic term "authorities," indicates that Congress intended the President to retain some flexibility to adjust existing embargoes.
The Court of Appeals felt that its more constricted reading of the grandfather clause comported with the legislative history surrounding the enactment of Public Law 95-223. We would certainly agree that the following colloquy between Representative Cavanaugh and Assistant Secretary of the Treasury Bergsten, the administration's spokesman for the bill, supports a narrow reading of the grandfather clause:
"MR. CAVANAUGH. . . . First of all, Mr. Bergsten, would it be your understanding that [the grandfather clause] would strictly limit and restrict the grandfathering of powers currently being exercised under 5(b) [of TWEA] to those specific uses of the authorities granted in 5(b) being employed as of June 1, 1977."
"MR. BERGSTEN. Yes, sir."
"MR. CAVANAUGH. And it would preclude the expansion by the President of the authorities that might be included in 5(b) but are not being employed as of June 1, 1977."
"MR. BERGSTEN. That is right. [Footnote 19]"
We also agree that a narrow construction at least appears to be supported by Representative Bingham's objections to, and the subsequent elimination of, language in a Subcommittee staff draft which would have expressly grandfathered presently unused authorities of the President under § 5(b) of TWEA so long as they were used to deal with a "set of
circumstances" already being dealt with under some other authority. [Footnote 20]
But even if these were the only available indications of congressional intent apart from the language which Congress enacted, we would have grave doubts that they were sufficient to overcome what seems to us to be the clear, generic meaning of the word "authorities." Oral testimony of witnesses and individual Congressmen, unless very precisely directed to the intended meaning of particular words in a statute, can seldom be expected to be as precise as the enacted language itself. To permit what we regard as clear statutory language to be materially altered by such colloquies, which often take place before the bill has achieved its final form, would open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President.
In our opinion, a full examination of the legislative history -- the Subcommittee hearings, markup sessions, floor debates, and House and Senate Reports -- does not support the view that only those restrictions actually in place on July 1, 1977, were to be grandfathered. [Footnote 21] The crucial point is that the discussion, even in the Cavanaugh and Bingham excerpts, is consistently carried on in terms of existing "powers" and "authorities," not in terms of existing "restrictions" or "prohibitions." [Footnote 22] The legislative history simply does not
countenance the suggestion that Congress really meant "restrictions" even though it wrote "authorities."
Finally, we reject the Court of Appeals' view that the purpose of the grandfather clause was merely to preserve existing bargaining chips in negotiations with affected countries. There are some statements in the Subcommittee hearings to the effect that existing embargoes should not be abandoned without exacting some sort of negotiated quid pro quo. [Footnote 23] But it is clear that the prime reason that existing embargoes were grandfathered was to keep the bill, H.R. 7738 -- which included IEEPA as well as the amendments to TWEA -- from becoming too controversial. Members of the Subcommittee feared that, if current embargoes were implicated, the bill would bog down in partisan disputes, thereby delaying implementation of the new procedures of IEEPA. [Footnote 24]
The House Report is explicit on this point.
"Certain current uses of the authorities affected by H.R. 7738 are controversial -- particularly the total U.S. trade embargoes of Cuba and Vietnam. The committee considered carefully whether to revise, or encourage the President to revise, such existing uses of international economic transaction controls, and thereby the policies they reflect, in this legislation. The committee decided that to revise current uses, and to improve policies and procedures that will govern future uses in a single bill would be difficult and divisive. Committee members concluded that improved procedures for future use of emergency international economic powers should take precedence over changing existing uses. By
'grandfathering' existing uses of these powers, without either endorsing or disclaiming them, H.R. 7738 adheres to the committee's decision to try to assure improved future uses, rather than remedy possible past abuses."
H.R.Rep. No. 95-459, pp. 9-10 (1977). Hewing to this noncontroversial approach, Representative Bingham, the Chairman of the responsible House Subcommittee, assured the Members of the House that
"this legislation specifically grandfathers the embargoes against Vietnam, Cambodia, Laos, Cuba, and other existing embargoes, so that they are not affected in any way by this legislation."
123 Cong.Rec. 38166 (1977) (emphasis added). Our reading of the grandfather clause is consistent with these clear statements of its purpose and effect. Eliminating the President's authority to modify existing licenses in response to heightened tensions with Cuba would have sparked just the sort of controversy the grandfather clause was designed to avoid. See Emergency Controls Hearings, at 207 (summary of staff draft); id. at 210 (remarks of Rep. Bingham).
Respondents finally urge that, if we do find that the President is authorized by Congress to enforce the regulations here in question, their enforcement violates respondents' right to travel guaranteed by the Due Process Clause of the Fifth Amendment. Respondents rely on a number of our prior decisions which recognized such a right, beginning in 1958 with Kent v. Dulles,357 U. S. 116. Respondents' counsel undoubtedly speaks with some authority as to these cases, since he represented the would-be travelers in most of them.
In Kent, the Court held that Congress had not authorized the Secretary of State to inquire of passport applicants as to affiliation with the Communist Party. The Court noted that the right to travel "is a part of the liberty' of which the citizen cannot be deprived without due process of law," id. at 357 U. S. 125, and stated that it would "construe narrowly all delegated
powers that curtail or dilute" that right. Id. at 357 U. S. 129. [Footnote 25] Subsequently, in Aptheker v. Secretary of State,378 U. S. 500, 378 U. S. 514 (1964), the Court held that a provision of the Subversive Activities Control Act of 1950, 64 Stat. 993, forbidding the issuance of a passport to a member of the Communist Party, "sweeps too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment."
Both Kent and Aptheker, however, were qualified the following Term in Zemel v. Rusk,381 U. S. 1 (1965). In that case, the Court sustained against constitutional attack a refusal by the Secretary of State to validate the passports of United States citizens for travel to Cuba. The Secretary of State in Zemel, as here, made no effort selectively to deny passports on the basis of political belief or affiliation, but simply imposed a general ban on travel to Cuba following the break in diplomatic and consular relations with that country in 1961. The Court in Zemel distinguished Kent on grounds equally applicable to Aptheker.
"It must be remembered . . . that the issue involved in Kent was whether a citizen could be denied a passport because of his political beliefs or associations. . . . In this case, however, the Secretary has refused to validate appellant's passport not because of any characteristic peculiar to appellant, but rather because of foreign policy considerations affecting all citizens."
381 U.S. at 381 U. S. 13. The Court went on to note that, although the ban in question effectively prevented travel to Cuba, and thus diminished the right to gather information about foreign countries, no First Amendment rights of the sort that controlled in Kent and Aptheker were implicated by the across-the-board restriction
in Zemel. And the Court found the Fifth Amendment right to travel, standing alone, insufficient to overcome the foreign policy justifications supporting the restriction.
"That the restriction which is challenged in this case is supported by the weightiest considerations of national security is perhaps best pointed up by recalling that the Cuban missile crisis of October, 1962, preceded the filing of appellant's complaint by less than two months."
381 U.S. at 381 U. S. 16. We see no reason to differentiate between the travel restrictions imposed by the President in the present case and the passport restrictions imposed by the Secretary of State in Zemel. Both have the practical effect of preventing travel to Cuba by most American citizens, and both are justified by weighty concerns of foreign policy. [Footnote 26]
Respondents apparently feel that only a Cuban missile crisis in the offing will make area restrictions on international travel constitutional. They argue that there is no "emergency" at the present time, and that the relations between Cuba and the United States are subject to "only the normal' tensions inherent in contemporary international affairs." Brief for Respondents 55. The holding in Zemel, however, was not tied to the Court's independent foreign policy analysis. Matters relating "to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Harisiades v. Shaughnessy,342 U. S. 580, 342 U. S. 589 (1952). Our holding in Zemel was merely an example of this classical deference to the political branches in matters of foreign policy.
The Cuban Assets Control Regulations were first promulgated during the administration of President Kennedy. They have been retained, though alternately loosened and tightened in response to specific circumstances, ever since. In every year since the enactment of IEEPA in 1977, first President Carter and then President Reagan have determined that the continued exercise of the authorities of § 5(b) of TWEA against Cuba is in the national interest. See n. 10supra. Since both were acting under the grandfather clause of Public Law 95-223, there was no legal requirement that either of them proclaim a new national emergency under the procedures of IEEPA. But the absence of such a proclamation does not detract from the evidence presented to both the District Court and the Court of Appeals to the effect that relations between Cuba and the United States have not been "normal" for the last quarter of a century, and that those relations have deteriorated further in recent years due to increased Cuban efforts to destabilize governments throughout the Western Hemisphere. See Enders Declaration 115, App. 172.
In the opinion of the State Department, Cuba, with the political, economic, and military backing of the Soviet Union, has provided widespread support for armed violence and terrorism in the Western Hemisphere. Cuba also maintains close to 40,000 troops in various countries in Africa and the Middle East in support of objectives inimical to United States foreign policy interests. See Frechette Declaration 4, App. 107. Given the traditional deference to executive judgment "[i]n this vast external realm," United States v. Curtiss-Wright Export Corp.,299 U. S. 304, 299 U. S. 319 (1936), we think there is an adequate basis under the Due Process Clause of the Fifth Amendment to sustain the President's decision to curtail the flow of hard currency to Cuba -- currency that could then be used in support of Cuban adventurism -- by restricting travel. Zemel v. Rusk, supra, at 381 U. S. 14-15; Haig v. Agee,453 U. S. 280, 453 U. S. 306-307 (1981).
In sum, we conclude, based on an analysis of the language of the grandfather clause as well as its purpose and legislative history, that the grandfathered authorities of § 5(b) of TWEA provide an adequate statutory basis for the 1982 amendment restricting the scope of permissible travel-related transactions with Cuba and Cuban nationals. We also conclude that such restrictions do not violate the freedom to travel protected by the Due Process Clause of the Fifth Amendment.
The judgment of the Court of Appeals is
Alternative statutory authority for the Cuban Assets Control Regulations was found in the Foreign Assistance Act of 1961, Pub.L. 87-195, 75 Stat. 424. See 28 Fed.Reg. 6974 (1963). Section 620(a) of that Act, which is still in force, provides:
"No assistance shall be furnished under this chapter to the present government of Cuba. As an additional means of implementing and carrying into effect the policy of the preceding sentence, the President is authorized to establish and maintain a total embargo upon all trade between the United States and Cuba."
22 U.S.C. § 2370(a). The Government has chosen not to rely on § 620(a) of the Foreign Assistance Act as statutory authority for the 1982 limitations on permissible travel-related economic transactions, apparently for two reasons. See Brief for Petitioners 4, n. 8. First, the scope of § 5(b) of TWEA, seen 2, infra, appears to be broader than that of § 620(a) insofar as it reaches financial transactions unrelated to trade. Second, the Foreign Assistance Act does not provide criminal penalties for violations of the regulations promulgated under it. TWEA does so provide. See 50 U.S.C.App. § 16.
In 1963, § 5(b) of TWEA provided in relevant part:
"(1) During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise -- "
"(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities, and"
"(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest. . . . "
50 U.S.C.App. § 5(b) (1958 ed.).
TWEA was first passed in 1917, six months after the United States entered World War I. See Act of Oct. 6, 1917, ch. 106, 40 Stat. 411. As originally enacted, TWEA dealt only with the President's use of economic powers in times of war. The Act was expanded to deal with peacetime national emergencies in 1933. Act of Mar. 9, 1933, ch. 1, 48 Stat. 1. The President has delegated his authority under TWEA to the Secretary of the Treasury, Exec.Order No. 9193, 3 CFR 1174, 1175 (1942), who in turn has delegated that authority to the Office of Foreign Assets Control, Treasury Department Order No. 128 (Rev. 1, Oct. 15, 1962).
Similar embargoes are in place against North Korea, Vietnam, and Cambodia. See 31 CFR pt. 500 (1983).
The Cuban Assets Control Regulations incorporated and expanded upon prior economic sanctions imposed on Cuba. See, e.g., 27 Fed.Reg. 1116 (1962) (complete embargo on imports from Cuba); 43 Dept.State Bull. 715 (1960) (denial of export licenses for most industrial exports to Cuba). For a more complete statement of the policies behind these restrictions and the circumstances that precipitated their imposition, see Report of the Special Committee to Study Resolutions II.1 and VIII of the Eighth Meeting of Consultation of Ministers of Foreign Affairs, OEA/Ser. G/IV, pp. 14-16 (1963); Cuba, Dept. of State Pub. No. 7171, pp. 25-36 (1961). See also Zemel v. Rusk,381 U. S. 1, 381 U. S. 14-15 (1965).
Regulation 560 was first passed on March 29, 1977. 42 Fed.Reg. 16621. It was amended on May 18, 1977, to further relax existing restrictions on travel-related transactions with Cuba. 42 Fed.Reg. 25499.
Some restrictions remained. For example, travelers were not allowed to purchase merchandise in Cuba with a foreign market value in excess of $100. Moreover, such merchandise could be purchased for personal use only, and could not be resold. 31 CFR § 515.560(a)(3) (1977). Also, scheduled air and sea travel to Cuba was still prohibited, § 515.560(a)(5), as were any contracts between domestic credit card issuers and any Cuban enterprises "for the extension of credit to any traveler for any purpose," § 515.560(a)(7).
Title I, § 101, of Pub.L. 95-223, 91 Stat. 1625, amended § 5(b) of TWEA "by striking out or during any other period of national emergency declared by the President' in the text preceding subparagraph (A)." For the text of § 5(b) prior to this amendment, seen 2, supra.
See Dames & Moore v. Regan,453 U. S. 654, 453 U. S. 671 (1981). There are some differences, however. The grant of authorities in IEEPA does not include the power to vest (i.e., to take title to) foreign assets, to regulate purely domestic transactions, to regulate gold or bullion, or to seize records. See H.R.Rep. No. 95-459, pp. 14-15 (1977).
Congress has reserved to itself the authority to terminate any declared national emergency by concurrent resolution. 50 U.S.C. § 1622.
See 48 Fed.Reg. 40695 (1983); 47 Fed.Reg. 39797 (1982); 46 Fed.Reg. 45321 (1981); 45 Fed.Reg. 59549 (1980); 44 Fed.Reg. 53153 (1979); 43 Fed.Reg. 40449 (1978).
Regulation 560 was amended again in July of that year to further clarify the scope of permissible travel-related transactions with Cuba. 47 Fed.Reg. 32060 (1982). For a statement of the policies behind the amendments, see Declaration of Thomas O. Enders, Assistant Secretary of State for Inter-American Affairs,
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