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
Page 468 U. S. 223
Appeals, holding that the challenged amendment lacked statutory
authority, vacated the District Court's order and remanded with
instructions to issue the injunction.
Held:
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,
Page 468 U. S. 224
JJ., joined,
post, p.
468 U. S. 244.
POWELL, J., filed a dissenting opinion, post, p.
468 U. S.
262.
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
Page 468 U. S. 225
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.
I
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
Page 468 U. S. 226
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]
Page 468 U. S. 227
"[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
Page 468 U. S. 228
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
Page 468 U. S. 229
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
Page 468 U. S. 230
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
Page 468 U. S. 231
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]
Page 468 U. S. 232
II
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
Page 468 U. S. 233
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
Page 468 U. S. 234
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.
See n 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]
Page 468 U. S. 235
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
Page 468 U. S. 236
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
Page 468 U. S. 237
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.
Page 468 U. S. 238
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
Page 468 U. S. 239
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
Page 468 U. S. 240
'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).
III
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
Page 468 U. S. 241
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
Page 468 U. S. 242
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.
Page 468 U. S. 243
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.
10
supra. 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).
Page 468 U. S. 244
IV
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
Reversed.
[
Footnote 1]
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,
see n 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.
[
Footnote 2]
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).
[
Footnote 3]
Similar embargoes are in place against North Korea, Vietnam, and
Cambodia.
See 31 CFR pt. 500 (1983).
[
Footnote 4]
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).
[
Footnote 5]
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.
[
Footnote 6]
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).
[
Footnote 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,
see n 2,
supra.
[
Footnote 8]
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).
[
Footnote 9]
Congress has reserved to itself the authority to terminate any
declared national emergency by concurrent resolution. 50 U.S.C. §
1622.
[
Footnote 10]
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).
[
Footnote 11]
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, ��
5-14, App. 172-177; Declaration of James H. Michel, Acting
Assistant Secretary of State for Inter-American Affairs �� 3-7,
App. 178-181; Declaration of Myles R. R. Frechette, Director,
Office of Cuban Affairs, Department of State �� 4-10, App. 107-108.
See also infra at
468 U. S. 243.
[
Footnote 12]
As amended, Regulation 560 provides that special licenses may be
issued in appropriate cases for travel-related transactions by
"persons desiring to travel to Cuba for humanitarian reasons, or
for purposes of public performances, public exhibitions, or similar
activities." 31 CFR § 515.560(b) (1983).
[
Footnote 13]
Respondents also claimed that the 1982 travel restrictions
violated the 1978 Passport Act, 22 U.S.C. § 21 la, which prohibits
area restrictions on passports except in certain circumstances;
that they exceeded the authority conferred by TWEA and by IEEPA;
and that they violated respondents' First and Fifth Amendment
rights, including the right to travel, due process, and equal
protection.
See Complaint � 14, App. 9.
[
Footnote 14]
The Court of Appeals for the Eleventh Circuit accepted the
second and third of these reasons in striking down another
regulation passed under the grandfather clause to the 1977
amendments to TWEA.
United States v. Frade, 709 F.2d 1387,
1397-1402 (1983).
[
Footnote 15]
The Court of Appeals bolstered its conclusion with two
additional considerations. First, the court noted that our cases
required it to "construe narrowly all delegated powers that curtail
or dilute" the right to travel,
Kent v. Dulles,
357 U. S. 116,
357 U. S. 129
(1958), and that "[t]hat principle of narrow interpretation applies
here." 708 F.2d at 800. Second, the court noted that, in 1978,
Congress amended the Passport Act, 22 U.S.C. § 211a, to prohibit
the Executive Branch from imposing peacetime passport travel
restrictions without the authorization of Congress, except for
health and safety considerations. Pub.L. 95-426, § 124, 92 Stat.
971.
"To interpret the 'savings clause' as the government suggests
would make the Passport Act amendment meaningless in terms of Cuba,
for the Executive Branch could unilaterally impose Cuban travel
restrictions by imposing currency restrictions, as it did
here."
708 F.2d at 801.
[
Footnote 16]
Respondents argue that § 5(b) of TWEA never encompassed the
power to regulate travel-related transactions. Brief for
Respondents 21-31. In light of the sweeping statutory language,
however, this argument borders on the frivolous. The President is
authorized to regulate "any" transaction involving "any" property
in which a foreign country or national thereof has "any" interest.
Payments for meals, lodging, and transportation in Cuba are all
transactions with respect to property in which Cuba or Cubans have
an interest. Such transactions, therefore, fall naturally within
the statutory language, and there is no indication that Congress
intended to limit the President's power to control them in response
to a national emergency.
See Dames & Moore v. Regan,
453 U.S. at
453 U. S. 672
("both the legislative history and cases interpreting the TWEA
fully sustain the broad authority of the Executive when acting
under this congressional grant of power");
Guessefeldt v.
McGrath, 342 U. S. 308,
342 U. S. 319
(1952).
In the alternative,
see Brief for Respondents 10-20,
respondents argue that a 1978 amendment to the Passport Act, 22
U.S.C. § 211a, eliminated whatever authority the President once had
to regulate travel-related transactions under TWEA.
See
Pub.L. 95-426, § 124, 92 Stat. 971. But the 1978 amendment to the
Passport Act is directed solely to the authority of the Secretary
of State to impose area restrictions on the use of United States
passports. The amendment has nothing to do with, and makes no
mention of, the President's authority to regulate transactions
under TWEA. Since repeals by implication are not favored,
TVA
v. Hill, 437 U. S. 153,
437 U. S.
189-190 (1978);
Morton v. Mancari, 417 U.
S. 535,
417 U. S. 549
(1974), respondents' argument must be rejected. The Court of
Appeals' reliance on the Passport Act in its construction of the
grandfather clause,
see n 15,
supra, is similarly unpersuasive.
[
Footnote 17]
Further proof that Congress did not distinguish between
travel-related transactions involving foreign property and other
property transactions, either when TWEA was first passed or when it
was amended in 1977, is provided by § 203(a) of IEEPA. Section
203(a), which delineates the authorities of the President following
a declaration of national emergency under the new procedures of
IEEPA, merely tracks the language of § 5(b) of TWEA.
See
n. 8,
supra.
[
Footnote 18]
We think that the Court of Appeals for the First Circuit may
have been confused as to some aspects of the Cuban embargo. The
court states that respondents are prevented from traveling to Cuba
by
"a Treasury Department regulation that prohibits them . . . from
paying for 'transportation-related' expenses 'ordinarily incident
to travel to and from Cuba' and for any other expenses 'ordinarily
incident to travel within Cuba, including payment of living
expenses and the acquisition in Cuba of goods for personal
consumption there.' 31 CFR § 515.560 (1982)."
708 F.2d at 795. But, of course, 31 CFR § 515.560 (1983) does
not prevent respondents from doing anything. As amended, it merely
fails to include them in the license that it grants to some
persons. Regulation 201(b)'s general prohibition on transactions
involving property in which Cuba or Cubans have an interest is
what, as a practical matter, prevents respondents from traveling to
Cuba.
On the next page of its opinion, the court states that,
"[a]lthough the Treasury Department regulated travel to Cuba by
means of regulations of the sort here at issue from 1963 to early
1977, on March 29, 1977, the Department repealed those travel
restrictions. . . . "
Id. at 796. Again, there were no separate "travel
restrictions," either to be repealed in 1977 or reimposed in 1982.
The source of all restrictions on property transactions is
Regulation 201(b), which has been in effect continuously since
1963. Properly understood, the structure of the Cuban embargo
undercuts the argument that restrictions on travel purchases and
restrictions on commodities purchases are "very different"
exercises of authority.
[
Footnote 19]
Revision of Trading with the Enemy Act: Markup before the House
Committee on International Relations, 95th Cong., 1st Sess., 21
(1977) (hereinafter cited as Markup).
[
Footnote 20]
Emergency Controls on International Economic Transactions:
Hearings before the Subcommittee on International Economic Policy
and Trade of the House Committee on International Relations, 95th
Cong., 1st Sess., 167 (1977) (hereinafter cited as Emergency
Controls Hearings). Understood in context, however, the fact that
such language was deleted from the Subcommittee draft is, at best,
ambiguous. In response to a request by Representative Bingham for
the administration's reaction to the draft language, Mr. Santos
from the Department of the Treasury testified on June 9, 1977, over
two months after Regulation 560 was promulgated, that the language
was unnecessary, because the President was in fact exercising all
of the authorities provided by § 5(b) of TWEA:
"We have reviewed the powers conferred under this draft.
Frankly, we believe that all the powers conferred are exercised,
and that there are no additional powers that could be exercised
that are not already exercised."
Id. at 188. Representative Bingham then stated:
"You have said, as I understand it, that there is no need for
subparagraph 2 [grandfathering presently unused powers], that you
would not be disturbed by the elimination of paragraph 2."
Ibid. Thus, the challenged language may simply have
been deleted as surplusage. If so, the deletion supports the view
that the phrase "authorities being exercised" embraces much more
than simply those restrictions actually in place on July 1,
1977.
[
Footnote 21]
The Court of Appeals read that history in light of its erroneous
conclusion that the regulation of travel purchases is wholly
different from the regulation of other transactions involving Cuban
property.
See supra at
468 U. S.
232-233, and n. 18. The Court of Appeals also freely
substituted the word "restrictions" for "authorities" in drawing
its conclusions from the legislative history.
See 708 F.2d
at 798. Thus, the court fastened onto isolated statements to the
effect that only existing "uses" of authority were to be
grandfathered, and concluded that, since travel restrictions were
not currently being used, such restrictions could not now be
imposed.
Ibid.
We have already discussed the flaws in this argument. When the
language of the grandfather clause is read in light of § 5 of TWEA
and the structure of the Cuban Assets Control Regulations in effect
on July 1, 1977, it becomes clear that the President's authority to
regulate all property transactions with Cuba and Cuban nationals,
including travel-related transactions, was being "used" on the
relevant date. One might argue that the phrase "uses of
authorities" is somehow narrower than the phrase "authorities . . .
being exercised," and that the former refers only to specific
restrictions. But even if such an argument does not parse concepts
too finely, the fact remains that the latter phrase, not the
former, was enacted into law.
[
Footnote 22]
See, e.g., H.R.Rep. No. 95-459, pp. 1, 7, 10, 12-13
(1977); S.Rep. No. 95-466, pp. 1, 4 (1977); Emergency Controls
Hearings, at 207 (remarks of Rep. Bingham);
id. at 147-148
(remarks of Mr. Majak),
id. at 168 (remarks of Rep.
Cavanaugh); Markup, at 7 (prepared statement of Rep. Bingham);
id. at 21 (remarks of Rep. Cavanaugh); 123 Cong.Rec. 22476
(1977) (remarks of Rep. Bingham).
There are even explicit statements in the legislative history
that the regulation of travel-related transactions was among the
"authorities being exercised with regard to Cuba. . . ." Emergency
Controls Hearings, at 216 (remarks of Mr. Santos);
id. at
197 (remarks of Mr. Majak, Staff Director of Subcommittee on
International Economic Policy and Trade) ("[T]he news media, in the
case of Cuba objected to the fact that they are subjected to a
licensing process in order to travel to certain embargoed
countries. That was certainly a part of the exercise of the
authorities").
[
Footnote 23]
See id. at 103 (statement of Mr. Bergsten);
id. at 12 (statement of Prof. Andreas F. Lowenfeld).
[
Footnote 24]
See Markup, at 7-8 (prepared statement of Rep.
Bingham); Emergency Controls Hearings, at 207 (summary of staff
draft);
id. at 198 (remarks of Rep. Whalen);
id.
at 190-191 (remarks of Mr. Santos);
id. at 168 (remarks of
Rep. Bingham).
[
Footnote 25]
In
Kent, 357 U.S. at
357 U. S.
126-127, the constitutional right to travel within the
United States and the right to travel abroad were treated
indiscriminately. That position has been rejected in subsequent
cases.
See Haig v. Agee, 453 U. S. 280,
453 U. S. 306
(1981) ("the freedom to travel outside the United States must be
distinguished from the right to travel within the United States");
Califano v. Aznavorian, 439 U. S. 170,
439 U. S.
176-177 (1978).
[
Footnote 26]
United States v. Laub, 385 U.
S. 475 (1967), upon which respondents also rely,
involved only a statutory question of whether an indictment
properly charged a crime under the laws of the United States. In
our view, the case sheds no light on the issues presented here.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE POWELL join, dissenting.
All parties concede that the 1982 restrictions on travel-related
expenditures in Cuba, 47 Fed.Reg. 17030 (1982), were not
promulgated in conformity with the procedural requirements of the
International Emergency Economic Powers Act of 1977, Pub.L. 95-223,
Title II, 91 Stat. 1626, 50 U.S.C. §§ 1701-1706 (IEEPA). Thus,
those restrictions are invalid unless they were authorized by §
101(b) of Pub.L. 95-223, 91 Stat. 1625, the grandfather clause of
the IEEPA. Because I do not agree that the grandfather clause
encompasses the exercise of Presidential power at issue here, I
would affirm the judgment of the United States Court of Appeals for
the First Circuit.
I
Congress promulgated Public Law 95-223 to address problems
unforeseen by the drafters of the Trading With the Enemy Act of
1917, 40 Stat. 411, as amended, 50 U.S.C.App. § 1
et seq.
(TWEA). The TWEA was one of several statutes that reflected
Congress' conclusion that the President should have increased
authority in times of war or national emergency in order to respond
to such crisis situations with the coordinated alacrity they
require. Accordingly,
Page 468 U. S. 245
the TWEA provided the President with a broad range of powers
over international trade in time of war or "national
emergency."
Although TWEA provided clear procedures for enhancing the
authority of a President when an emergency arose, the Act contained
no similar provision to reduce the President's authority to its
normal scope when the emergency subsided. Once the President had
declared a state of national emergency, the emergency officially
continued to exist until the President declared that it had ended.
Until such a declaration of termination was made, the President
enjoyed the broad authority that the TWEA conferred upon him to
address the original emergency. The historical record shows that,
once a President had declared the existence of a national
emergency, he was slow to terminate it even after the circumstances
or tensions that had led to the declaration could no longer be said
to pose a threat of emergency proportion to the Nation.
See
generally Emergency Controls on International Economic
Transactions: Hearings before the Subcommittee on International
Economic Policy and Trade of the House Committee on International
Relations, 95th Cong., 1st Sess., 16-19 (1977) (Subcommittee
Hearings) (statement of Prof. Andreas F. Lowenfeld);
id.
at 27-31 (statement of Prof. Harold G. Maier).
Because of this pattern of behavior, TWEA emergency authority
operated as a one-way ratchet to enhance greatly the President's
discretionary authority over foreign policy. At the time that
Congress began to consider amendments to the TWEA, the United
States technically faced four declared states of "emergency." Among
the four were President Franklin D. Roosevelt's 1933 Bank Holiday
Declaration, Presidential Proclamation No. 2040, 48 Stat. 1691;
President Nixon's 1970 declaration concerning a Post Office strike,
Presidential Proclamation No. 3972, 3 CFR 473 (1966-1970 Comp.);
and President Nixon's 1971 declaration concerning the country's
balance-of-payments problems, Presidential Proclamation No. 4074, 3
CFR 60 (1971-1975 Comp.). The
Page 468 U. S. 246
national emergency most often invoked in connection with
exercises of TWEA powers was the emergency that had been declared
on December 16, 1950, by President Truman in response to the
developing Korean conflict. Presidential Proclamation No. 2914, 64
Stat. A454. That Proclamation warned of the threat of Communist
aggression. Because of this declaration of emergency, the President
retained broad authority of indefinite duration to respond to
anything that logically could be related to the general threat of
the spread of Communism.
There was widespread feeling that this broad grant of emergency
powers conflicted with the intent of the TWEA, which sought to
empower a President to respond to situations that presented an
imminent threat requiring immediate response. [
Footnote 2/1] The expert witnesses who testified
before the House Subcommittee expressed a general consensus that §
5(b) of the TWEA inappropriately had been used as a flexible
instrument of foreign policy in nonemergency situations.
See,
e.g., Subcommittee Hearings, at 13-14, 16 (statement of Prof.
Andreas F. Lowenfeld) ("no practical constraint limiting actions
taken under emergency authority to measures related to the
emergency");
id. at 22-23 (statement of Prof. Harold G.
Maier) ("combination of legislative permissiveness and executive
assertiveness over the past 40 years has created a significant
shift in the functional allocations of constitutional power to
regulate foreign commerce");
id. at 39 (statement of Prof.
Stanley D. Metzger) (suggesting
Page 468 U. S. 247
necessary checks and limitations on executive use of § 5(b)
powers);
id. at 83 (statement of Peter Weiss, Center for
Constitutional Rights) (TWEA "a prime example of the unchecked
proliferation of Presidential power for purposes totally unforeseen
by the creators of that power").
The Members of Congress who heard the testimony found it
convincing.
See, e.g., H.R.Rep. No. 95-459, p. 7 (1977) (§
5(b) "has become essentially an unlimited grant of authority");
Revision of Trading with the Enemy Act, Markup before the House
Committee on International Relations, 95th Cong., 1st Sess., 8
(1977) (House Markup) (statement of Rep. Bingham) ("Section 5(b)
has become a grab-bag of authorities which Presidents have been
able to use to do virtually anything for which they could find no
specific authority"). House Subcommittee Members also believed that
some of the actions taken by the Executive Branch under the TWEA
had, at most, a shaky foundation in actual emergency situations. In
an exchange with Assistant Secretary of State Julius L. Katz,
Subcommittee Chairman Bingham voiced his incredulity concerning the
bases for certain then-effective regulations promulgated under §
5(b):
"MR. BINGHAM. Mr. Katz, what is the national emergency currently
facing us that warrants the use of powers under the [TWEA]? . .
."
"MR. KATZ. It continues to be the emergency involving the threat
of Communist aggression which was declared in 1950 at the time of
the aggression in Korea."
"MR. BINGHAM. Are you serious?"
"MR. KATZ. That is the national emergency, Mr. Chairman, and it
continues."
"MR. BINGHAM. The emergency is the emergency that existed in
1950?"
"MR. KATZ. It has not been terminated."
Subcommittee Hearings, at 110. [
Footnote 2/2]
Page 468 U. S. 248
Dissatisfied generally with the responses of spokesmen from the
Executive Branch, Representative Bingham criticized the
administration's lack of cooperation in the effort to amend the
TWEA. He further observed:
"Now I think that you have to face the facts, which are that the
executive branch wants to be free to continue to act with an
enormous degree of discretion on the basis that an emergency
exists, although by no common sense application of the term could
the situation be called an emergency."
"The threat of Communist aggression, if you will, or the threat
of Communist competition which we face in the world, Mr. Katz, is a
permanent situation. It is not an emergency unless you are going to
define the situation that exists in the world today as a permanent
emergency. I don't see how you justify use of the term."
"
* * * *"
"Up until now, the reaction of the subcommittee, and the
reaction of the witnesses that we have had, has been that the
situation that we are in is quite an incredible one, and it has to
be substantially altered to try to conform with reality and with
principle."
Id. at 113-114.
It is clear that Congress intended to curtail the discretionary
authority over foreign affairs that the President had accumulated
because of past "emergencies" that no longer fit Congress'
conception of that term. To accomplish this goal, Congress amended
the TWEA and enacted the IEEPA. Congress left intact the powers
that the TWEA had conferred upon the President during time of war,
but removed from the TWEA the authority for Presidential action in
a national emergency. As a substitute for those powers, Congress
promulgated the IEEPA to confer power upon the President in
national emergency situations. The substantive reach of the
President's power under the IEEPA is
Page 468 U. S. 249
slightly narrower than it had been under the TWEA, [
Footnote 2/3] and Congress placed several
procedural restrictions on the President's exercise of the national
emergency powers, including congressional consultation, review, and
termination.
The prospective nature of the IEEPA left Congress with the
dilemma of how to deal with existing regulations that had been
promulgated under § 5(b) and obviously had not been issued in
accordance with the new procedures set forth in the IEEPA. There
were those on the House Subcommittee considering the amendments to
the TWEA who thought that there should be no grandfathering, and
that the existing regulations should be allowed to expire.
See,
e.g., Subcommittee Hearings, at 167, 168-169, 198 (remarks of
Rep. Cavanaugh);
id. at 210 (remarks of Rep. Findley);
id. at 119 (colloquy between Rep. Bingham and Assistant
Treasury Secretary Bergsten). Such an approach would have required
the President to evaluate each situation in which regulations were
in effect and to determine whether the need for reinstitution of
the regulations justified a new declaration of national emergency.
Others believed that Congress should conduct such a review and
determine which restrictions were still justified by current
exigencies.
See H.R.Rep. No. 95-459, at 9-10. In response
to two related concerns, however, the view that there was a need
for some sort of grandfathering finally carried the day.
The first argument supporting a grandfather clause was the
desire to preserve the administration's bargaining position in
dealing with countries that were the subject of existing embargoes
and asset freezes. Testimony before the
Page 468 U. S. 250
House Subcommittee expressed the view that the President should
not be forced by Congress to make unilateral concessions to
countries that had been the targets of exercises of § 5(b)
authorities. In other words, many believed that the President
should not be forced to give up "bargaining chips" without
receiving something in return from the countries on the other side
of the negotiations. Subcommittee Hearings, at 19 (statement of
Prof. Lowenfeld) ("perhaps [the Cuba embargo] should not be
terminated . . . without a
quid pro quo");
id. at
103, 113, 119 (statements of Assistant Treasury Secretary Bergsten)
(unilateral termination of embargoes "would severely undermine the
U.S. negotiating position with those countries, and our worldwide
posture"); 123 Cong.Rec. 22477 (1977) (remarks of Rep. Whalen).
The second argument in favor of some form of a grandfather
clause was related to the first. Several of the witnesses who
testified at the hearings on the bill felt that the President
should not be faced with the need to declare a new national
emergency in order to continue existing restrictions. Such a
declaration would have foreign policy reverberations of its own,
and might inject new tension into a sensitive situation in which
tensions were on the decline.
See, e.g., Subcommittee
Hearings, at 19 (statement of Prof. Lowenfeld);
id. at
191-192 (remarks of Mr. Santos, Treasury Department attorney
adviser). It would have been incongruous, in other words, for
Congress to force the President to declare new emergencies in
nonemergency situations simply to avoid having to end restrictions
that, for negotiating reasons, the President had concluded should
not be ended unilaterally.
The proponents of grandfathering voiced their desire that the
grandfather clause be tailored narrowly to fit these concerns. In
its early form before the Subcommittee, the clause contained two
subparts, §§ 101(b)(1) and (2), which read:
"(1) any authority conferred upon the President by section 5(b)
of the Trading with the Enemy Act, which is being exercised with
respect to a set of circumstances on the date of enactment of this
Act as a result of a national
Page 468 U. S. 251
emergency declared by the President before such date of
enactment, may continue to be exercised with respect to such set of
circumstances; and"
"(2)
any other authority conferred upon the President by
that section may he exercised to deal with the same set of
circumstances."
Subcommittee Working Draft of June 8, 1977, 95th Cong., 1st
Sess., § 101(b) (emphasis added). In response to a question about
the meaning of § 101(b)(2), Subcommittee Staff Director R. Roger
Majak explained the purposes of the provision:
"[W]ith respect to any uses of 5(b) authorities for any
presently existing situation, not only could the President use
those particular authorities that he is now using, but any others
which are conferred by section 5(b)."
"So if the President is presently using asset controls toward a
particular country, but is not using, let us say, currency
controls, he nonetheless could use, at some later date if he so
desired, currency controls with respect to the situation."
"
* * * *"
"I think it boils down to a question of whether we are
grandfathering a particular situation, and all the powers that may
be necessary to deal with the situation, or whether we are
grandfathering the particular authorities themselves and their
usage."
Subcommittee Hearings, at 167.
Representative Bingham voiced his opposition to such a broad
grandfather clause.
"I have a serious question about that. It seems to me that, if
the President has not up to now used some authority that he has
under section 5(b) in connection with those cases where 5(b) has
been applied, I don't know why it should be necessary to give him
authority to expand what has already been done. It is really going
beyond grandfathering. "
Page 468 U. S. 252
"It seems to me that grandfathering applies to what has been
done to date, and that should be ample authority."
Ibid. Section 101(b)(2) was removed from the draft bill
presented to the Committee. [
Footnote
2/4] I can think of few sorts of information
Page 468 U. S. 253
routinely found in legislative histories that would give a
clearer indication that Congress intended to grandfather only the
regulations and restrictions that already had been exercised.
[
Footnote 2/5]
When the full House Committee viewed § 101(b) after § 101(b)(2)
had been deleted, Representative Cavanaugh sought to ascertain that
the clause was drawn as narrowly as possible to include only those
regulations currently in effect:
"MR. CAVANAUGH. . . . First of all, Mr. Bergsten, would it be
your understanding that section 101 would strictly limit and
restrict the grandfathering of powers currently being exercised
under 5(b) 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."
House Markup at 21. In explaining the effect of the grandfather
clause to the full House Committee, Representative Bingham stressed
that
Page 468 U. S. 254
the grandfather clause would leave intact "specific current uses
of 5(b) authorities" and emphasized that the bill "neither condones
nor condemns existing policies."
Id. at 7.
It is important to emphasize that the decision to grandfather
the specific uses of authorities being exercised at a certain date
did not reflect congressional acknowledgment that those uses of
authorities were, in fact, addressed to true emergency situations.
To the contrary, Congress openly expressed its view that many of
the grandfathered restrictions had no real basis in an emergency
situation. H.R.Rep. No. 95-459, at 11 (few current uses could be
justified as responding to existing emergency situations).
Responding to this sentiment, Congress expressly provided annual
procedures governing the continuation of grandfathered authorities
that are different from the procedures that govern the continued
exercise of any new restrictions entered pursuant to a new state of
emergency. With respect to future exercises of emergency power, the
President's decision to continue in effect the proclamation of
national emergency, and the regulations promulgated thereunder, are
subject to semiannual review by Congress.
See 50 U.S.C. §§
1622(b), 1641(c). With respect to grandfathered authorities, the
grandfather clause requires only that the President find continued
exercise of the authority to be in the national interest. § 101(b),
50 U.S.C.App. § 5; Subcommittee Hearings, at 208. In this way, the
Subcommittee avoided perpetuating the "phony character" of the
national emergencies under which current exercises of § 5(b) power
were promulgated.
Id. at 210.
See also id. at 193
(statement by Mr. Santos, Treasury Department attorney adviser)
(administration would have difficulty making good faith declaration
of current national emergency with respect to Cuba); House Markup,
at 3 (remarks of Rep. Bingham).
In sum, the grandfather provision of the IEEPA was designed
narrowly to respond to a particularized set of
Page 468 U. S. 255
concerns. It sought to avoid placing the President in the
awkward situation either of making unilateral concessions to
countries subject to restrictions or declaring a new state of
emergency with respect to a country where none, in fact, existed.
Congress concluded that these objectives were served fully with a
grandfather clause that preserved existing restrictions, but gave
the President no authority to impose new restrictions except
through the new IEEPA procedures that govern the President's
authority to respond to new emergencies.
II
The Court rejects this narrow interpretation in favor of one
that loses all sight of the general legislative purpose of the
IEEPA and the clear legislative intent behind the grandfather
clause. To achieve its labored result, the Court invokes a series
of platitudes on statutory interpretation, but ignores their
application to this case. Ironically, the very pieces of
legislative history that the Court cites to justify its result
clearly support the contrary view.
Recognizing the clear import of the legislative history, the
Court begins by discovering absolute clarity in the "plain
language" of the statute. The Court focuses on the fact that
Congress used the term "authorities" in the grandfather clause
instead of either the word "restrictions" or "prohibitions."
Finding what, in its view, is a vast difference between the meaning
of the first term and that of the latter two, the Court concludes
that, if Congress had meant "restrictions," it would have said so
explicitly.
Ante at
468 U. S.
236.
But the Court's confident claim that the statutory language is
without ambiguity is pure
ipse dixit. The Court concedes
that, throughout the legislative history, Congress referred to what
it wanted to grandfather as "restrictions," "controls," "specific
uses," "prohibitions," "existing uses," and "authorities." It is
true that Congress used the word "authorities" when it drafted the
statute, but there is nothing to indicate
Page 468 U. S. 256
that it used the term "authorities" to express any intent other
than that which is made plain in the legislative history. The
likely reason that the term "authorities" was used instead of a
term such as "prohibitions" is simply that § 5(b) authorized a
President to do much more than issue prohibitions, and Congress
intended to grandfather the uses of those powers as well. For
example, § 5(b) authorizes the President to conduct investigations
of various activities and to "freeze" the assets of foreign
countries and foreign nationals. At the time Congress enacted the
IEEPA, the President had exercised these authorities over several
countries, including Cuba, and Congress clearly intended to
grandfather those exercises. Because the exercise of these powers
does not fit naturally within a word such as "prohibitions," it is
hardly surprising that Congress did not use that term. Thus, the
short answer to the Court's question as to why Congress did not use
the term "prohibitions" is simply that Congress intended to include
more than mere prohibitions.
There is nothing in the language of the statute to suggest,
however, that Congress intended the grandfather clause to provide a
President with the authority to increase the restrictions
applicable to a particular country without following the IEEPA
procedures. As the legislative history makes clear, when Congress
grandfathered all "authorities . . . being exercised," it sought to
preserve the uses of § 5(b) authorities that the President had
employed in the past to address a particular situation -- but no
more. As Representative Bingham, a principal drafter of the bill,
stated:
"if the President has not up to now used some authority that he
has under section 5(b) in connection with those cases where 5(b)
has been applied, I don't know why it should be necessary to give
him authority to expand what has already been done."
Subcommittee Hearings, at 167.
In its effort to downplay the clear legislative history of the
grandfather clause, the Court relies on platitudes about the
hazards of relying on such legislative history. The Court correctly
states:
Page 468 U. S. 257
"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."
Ante at
468 U. S. 237.
I have no disagreement with these generalities; they simply have no
relevance to this case. The "colloquies" referred to involve the
drafters of the Act, are directed at the precise language of the
grandfather clause, and either were addressed to the bill in its
final form or aimed at getting changes in the bill to deal with
precisely the problem at issue in this case.
Failing to heed its own advice, the Court then would rely on the
legislative history of the Act to discern a congressional purpose
consistent with its interpretation of the statute. The Court
concludes that the purpose of the grandfather clause was to prevent
the proposed bill from becoming controversial. Once again, I have
no disagreement with this general interpretation. But the Court
misapprehends the aspects of the statute that Congress feared would
be divisive. Congress concluded that it would be controversial for
it to examine existing controls to determine whether they were
justified by the exigencies of particular situations. H.R.Rep. No.
95-459, at 9-10. And Congress also felt it undesirable to force the
President either to declare new national emergencies where none
existed or to end restrictions without obtaining a
quid pro
quo. Accordingly, Congress decided that it would grandfather
what the President already had done with respect to particular
situations. The "controversy" that Congress hoped the grandfather
clause would
Page 468 U. S. 258
avert had nothing to do with the President's authority to
respond to future situations.
The Court displays its utter confusion about this matter through
its reliance on a quotation from the House Report that the Court
believes supports its broad interpretation of the grandfather
clause. In fact, the passage provides strong support for exactly
the interpretation that the Court rejects. The passage reads:
"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, at 9-10 (emphases added).
The Court's decision to quote this language,
ante at
468 U. S.
239-240, is remarkable. By its terms, the quotation
makes clear that the controversy Congress sought to avoid was that
which would arise if Congress passed judgment on "existing uses of
international economic transaction controls, and thereby the
policies they reflect." Accordingly, Congress grandfathered them.
It is also clear that the "existing uses" and "economic controls"
and "policies" that Congress decided
Page 468 U. S. 259
not to review included only "what has been done to date."
Subcommittee Hearings, at 167 (remarks of Rep. Bingham). Congress
had no hesitation about restricting the President's authority to
exercise the emergency powers that he possessed but had not yet
exercised. To the contrary, as the quotation on which the Court
mistakenly relies makes absolutely clear, the primary purpose of
the Act was to curtail "future uses" of precisely that residual
authority.
Thus, it is equally remarkable for the Court to suggest that the
purpose of the grandfather clause is to protect the President's
authority to "respon[d] to heightened tensions with Cuba."
Ante at
468 U. S. 240.
If one thing is apparent from the legislative history of the Act,
it is that Congress was not persuaded that the realities of the
situation in Cuba constituted an emergency.
See supra at
468 U. S.
247-249,
468 U. S.
254-255. It is therefore somewhat incongruous to
conclude that Congress intended to give the President greater
flexibility to respond to developments in relations with Cuba than
to events in other trouble spots around the world, such as
Afghanistan, the Middle East, and Poland. With respect to future
developments in such places, the IEEPA makes clear that the
President cannot use his emergency powers to respond to "heightened
tensions" unless the President has decided that a state of
emergency exists, and has so declared. Nothing in the Court's
opinion explains why Congress intended such unevenness in the
President's authority to respond to future events; and it certainly
is not self-evident why a less anomalous approach would have been
"controversial." [
Footnote 2/6]
Page 468 U. S. 260
The full incongruity of the Court's unsupported conclusion that
Congress inserted the grandfather clause to preserve the
President's "flexibility to adjust existing embargoes,"
ante at
468 U. S. 236,
is perhaps even more apparent with respect to trade relations with
China. In 1950, trade with China was halted by a general
prohibition on unlicensed property transactions similar to the
general prohibition on trade with Cuba.
Compare 31 CFR §
500.201(b) (1977) (China)
with 31 CFR § 515.201(b) (1977)
(Cuba). In 1971, however, the President nullified this general
prohibition by enacting an equally broad general license. 36
Fed.Reg. 8584. In detailing the exercises of authority under § 5(b)
in effect at the time of the IEEPA, the House Report chronicled the
history of trade restrictions with China as follows:
"On May 8, 1971, the Department licensed most subsequent
transactions with China, while continuing the blocking of Chinese
assets in U.S. hands before that date.
This had the effect of
lifting the U.S. trade embargo of China. However, the
embargoes of North Korea, Vietnam, Cambodia, and Cuba
continue."
H.R.Rep. No. 95-459, at 6 (emphasis added).
Page 468 U. S. 261
No other reference to extant trade embargoes refers to a trade
embargo against China.
See, e.g., Subcommittee Hearings at
108 (statement of Assistant Treasury Secretary Bergsten); House
Markup at 8 (statement of Rep. Bingham). Thus, in the eyes of
Congress, the President was no longer exercising § 5(b) authorities
with respect to trade with China, even though a nullified general
prohibition was still in effect. Congress presumably envisioned
that the grandfather clause would preserve the freeze on Chinese
assets, but that all subsequent controls on trade would be subject
to the new IEEPA procedures.
The incongruity in the Court's analysis arises because the
President's position in 1977 with respect to all trade with China
was exactly like his position with respect to travel-related
expenditures in Cuba. If the logic of the Court's opinion in this
case is correct, Congress intended the grandfather clause in the
IEEPA to preserve the President's authority to reinstitute a
complete trade embargo with China simply by eliminating the general
license that was in effect at the time that the IEEPA was passed.
[
Footnote 2/7] There is no question
that the Congress that enacted the IEEPA did not imagine that the
grandfather clause preserved the President's authority to transform
trade relations with another country from a situation of virtually
free trade to a situation of complete embargo without following the
IEEPA procedures. To use the Court's words,
ante at
468 U. S. 235,
it "does undue violence to the words chosen by Congress," to say
nothing of congressional
Page 468 U. S. 262
intent, to suggest that Congress considered the reimposition of
a complete prohibition on trade with China as an "existing
exercise" of § 5(b) authorities preserved by the grandfather
clause. Surely, the reimposition of a complete embargo fits
squarely within the "future uses" of emergency authorities to which
Congress contemplated the new IEEPA procedures would apply. The
situation presented in this case with respect to Cuba is no
different, and it is equally clear that an increase in the embargo
of Cuba is what Congress considered to be a "future use" of
emergency authority not protected by the grandfather clause.
III
Because the restrictions on travel-related expenditures in Cuba
were not promulgated in conformity with the IEEPA, and because
there is no coherent reason to believe that Congress intended to
preserve the President's authority to institute such restrictions
without complying with the IEEPA, I respectfully dissent.
[
Footnote 2/1]
Congressional scrutiny of the TWEA powers was part of a larger
effort to review the bases of all the President's emergency powers.
In 1976, Congress enacted the National Emergencies Act, Pub.L.
94-412, 90 Stat. 1255, 50 U.S.C. § 1601
et seq., which, by
its § 101(a), provided that powers exercised pursuant to existing
states of national emergency would be terminated within two years
after its date of enactment. The National Emergencies Act, however,
exempted § 5(b) of the TWEA and several other provisions from that
2-year termination requirement in order to afford Congress the
opportunity for more thorough consideration of the powers and
procedures conferred upon the President by those provisions. §§
502(a)(1) and (b), 90 Stat. 1258, 1259; Subcommittee Hearings, at
1-2.
[
Footnote 2/2]
See also id. at 117, 119 (remarks of Rep. Bingham)
(referring specifically to lack of emergency with Cuba).
[
Footnote 2/3]
Four powers conferred upon the President by the TWEA were not
included in the powers conferred upon the President for use in time
of national emergency under the IEEPA. Those four powers are: (1)
the power to take title to foreign property; (2) the power to
regulate purely domestic transactions; (3) the power to regulate
gold or bullion; and (4) the power to seize records.
[
Footnote 2/4]
I am not persuaded by the Court's attempt to minimize the
significance of the deletion of § 101(b)(2).
See ante at
468 U. S. 237,
n. 20. First of all, when the colloquy between Mr. Santos (Treasury
Department attorney adviser) and Representative Bingham is read in
context, it is clear that the major area of concern for both Mr.
Santos and Representative Bingham was the question of what
conditions should be placed on the President's ability to continue
to exercise those authorities that were currently being exercised
under § 5(b),
i.e., whether the President should be
required to declare a continuing national emergency or merely be
required to declare that continued exercise is in the national
interest. A careful reading of the entire testimony of Mr. Santos,
see Subcommittee Hearings, at 187-197, suggests that, at
various points, Representative Bingham and Mr. Santos were not
understanding one another's questions and comments. There was never
any "meeting of the minds" on the import of Mr. Santos' comment
that all
"the powers conferred [were being] exercised and that there
[were] no additional powers that could be exercised that [were] not
already [being] exercised."
Id. at 188.
"Further, it is nonsensical to assume that Mr. Santos meant, or
that Representative Bingham could have understood him to mean, that
all § 5(b) powers were being exercised with respect to the
countries that were currently the subject of regulations
promulgated under § 5(b). For example, both participants in the
conversation were well aware that, in addition to the embargoes of
North Korea, Vietnam, Cambodia, and Cuba, there were in effect
Transaction Control Regulations, 31 CFR § 505.10
et seq.
(1977), which prohibited any 'person within the United States' from
purchasing from any foreign country strategic commodities destined
for a Communist country, and Foreign Funds Control Regulations, 31
CFR § 520.01
et seq. (1977), which blocked certain assets
of East Germany, Czechoslovakia, Latvia, Lithuania, and Estonia
that had been blocked during World War II. No party to this
litigation and nothing in the legislative history suggest that
there is any support for the view that all powers under § 5(b) were
being exercised with respect to all these countries. Mr. Santos'
statement is ambiguous and confusing, and I do not think it wise to
allow this single, isolated exchange to cast a shadow of doubt over
the clear import of the deletion of § 101(b)(2)."
[
Footnote 2/5]
That the Subcommittee wanted the grandfather clause to be read
narrowly is also evinced by suggestions that the Subcommittee find
ways to convey its intention that the grandfather provision be
tightly construed. Subcommittee Hearings at 212 (remarks of Rep.
Findley). In response, Representative Bingham suggested that the
changes in the bill discussed during the hearings be incorporated,
and that the bill be reported to the full Committee before further
amendments were made. Obviously sympathetic to any means of clearly
delimiting the scope of the grandfather clause, Representative
Bingham, who had suggested deleting § 101(b)(2), encouraged
Representative Findley to present his suggestions to narrow the
scope of the clause to the full Committee if Representative Findley
felt that such narrowing were still necessary after the bill had
been amended according to the Subcommittee's specifications.
Subcommittee Hearings, at 212.
[
Footnote 2/6]
Even the manner in which Congress discussed the need for
avoiding controversy on substantive issues suggests that Congress
had no idea that the grandfather clause would be read in the manner
in which the Court has interpreted it. Representative Bingham
explained the reason for the grandfather clause:
"We have also in title I grandfathered in essentially those
actions taken under the [TWEA] which it would be extremely
difficult, if not impossible, to persuade the Congress to reverse
at this time. I refer to the embargo against Cuba, the embargo
against Vietnam and so on."
"
* * * *"
"I think for us to attempt to deal with those controversial
substantive issues would be a mistake, even though I personally
favor lifting the embargo against Cuba and Vietnam."
House Markup at 2. Obviously, Representative Bingham viewed
grandfathering as an alternative to reviewing the regulations then
currently in effect under § 5(b) and deciding which restrictions to
lift.
See also H.R.Rep. No. 95-459, at 11; Subcommittee
Hearings, at 210 (remarks of Rep. Findley) (arguing that Congress
should not grandfather, and thereby give administration "easy way"
to avoid resuming normal trade relations with other countries);
id. at 193 (statement of Rep. Bingham) (question of
whether or not to grandfather is question of whether or not to
"disturb" existing embargoes);
id. at 7-8 (statement of
Rep. Bingham);
see also House Markup at 10 (remarks of
Rep. Whalen) (grandfather clause gives President discretion to
continue any controls currently in effect).
[
Footnote 2/7]
'The petitioners attempt to discount this incongruity by arguing
that the issue of whether the President could have reinstituted the
Chinese embargo under the grandfather clause is "moot," since the
President ended the use of § 5(b) authorities against China in
1980.
See Reply Brief for Petitioners 15, n. 18. While it
may be true that the President cannot now resurrect embargo powers
under the grandfather clause with respect to China because he has
allowed all § 5(b) authorities used against China to lapse, under
the Court's analysis, the President would have been free to place a
full embargo on China without complying with the IEEPA until such
time as he allowed those powers to expire.
JUSTICE POWELL, dissenting.
As the petitioners argue, the judgment of the Court may well be
in the best interest of the United States. The regulations upheld
today limit Cuba's ability to acquire hard currency, currency that
the Executive has found might be used to support violence and
terrorism. Our role is limited, however, to ascertaining and
sustaining the intent of Congress. It is the responsibility of the
President and Congress to determine the course of the Nation's
foreign affairs. In this case, the legislative history canvassed by
JUSTICE BLACKMUN's dissenting opinion unmistakably demonstrates
that Congress intended to bar the President from expanding the
exercise of emergency authority under § 5(b). Contrary to the
Court's view, the meaning of the word "authorities" in the
grandfather clause is not "clear,"
see ante at
468 U. S. 237,
nor in my view is it contrary to the fair import of this
history.