Regan v. Wald

TREASURY, THE OF REGAN, SECRETARY v. WALD et al. al. et 28, 1984 June 24, 1984 Decided April Argued 83-436. No. Rehnquist, J., delivered the opinion of the Court, in which Burger, J.,C. White, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan, Marshall, and Powell, post, opinion, dissenting J., Powell, filed post, p. joined, JJ., p. 262. for argued the cause Bator General Deputy Solicitor General Solicitor were the briefs on himWith

petitioners. Carolyn Willard, Attorney General Acting Assistant Lee, Robinson. R. Davis Hertz, and F. Corwin, Michael F. respondents. argued cause Boudin B. Leonard Lieberman, Charles Eric brief him With Lobel, Ratner, Jules Michael Neubome, Burt Sims, Mayerson.* A. Harold opinion the Court. delivered Rehnquist Justice travel want who citizens American Respondents are Treasury by doing a so from They inhibited are Cuba. 1963, in promulgated first regulation,

Department Cuba, in which involving property any transaction prohibits any nature “any of interest has thereof, any national or whatsoever, 515.201(b)(1983) 31 CPR indirect.” direct years, five 201(b)). period about of a For (Regulation as from to and travel ordinarily to” incident “transactions exempted limitations, some were, Cuba as within well general by a Regulation prohibition of broad from general (1983). But this §515.560 CFR 31 See license. permissible scope of in amended was license was Cuba travel connection transactions economic (1982). Reg. 17030 47 Fed. narrowed. significantly general to the challenged amendment Respondents sought statutory grounds constitutional on license District against enforcement. its injunction preliminary concluded Massachusetts District for Court likelihood a substantial demonstrated respondents had Lawyers Chicago Council for a brief filed Deutsch E. *Michael affirmance. urging curiae amicus of Churches Council National United a brief Semmel filed Herbert amici curiae. et al. as States in the United Christ

225 success on the merits and refused to issue injunction. App. to Pet. for Cert. 22a. appeal On taken respondents, the Court Appeals for the First Circuit, concluding that challenged amendment statutory lacked authority, va- cated the District Court’s order and remanded with instruc- tions to issue the preliminary injunction. 708 F. 2d 794 (1983). granted We application Government’s stay for a of the mandate, 463 U. S. (1983), 1223 as well petition as the for certiorari, 464 U. S. (1983), 990 and now reverse the judgment of the Court Appeals.

H Regulation 201(b) promulgated part 1963 as Cuban Assets Control Regulations, pt. 31 CFR (1963), implemented under Trading With the Enemy Act of 1917 (TWEA), 40 Stat. 411, as amended, U. S. App. §1 C. seq. et See 28 Reg. Fed. (1963).1 At §5(b) that time, gave TWEA the President broad impose com- prehensive embargoes foreign countries as one means of

1Alternative statutory authority for the Cuban Assets Control Regula tions was found in the Foreign Assistance Act of 1961, Pub. L. 87-195, 75 Stat. 424. See 28 Fed. Reg. (1963). 620(a) Section of that Act, which is still in force, provides: “No assistance shall be furnished under chapter to the present govern- ment 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. § 2370(a). C. The Government has chosen not to rely 620(a) §on of the Foreign Assist- ance Act as statutory authority for the 1982 limitations permissible on travel-related economic transactions, apparently for two reasons. See Brief for 4, Petitioners n. First, 8. the scope of § of TWEA, 2, see n. infra, appears to be broader than 620(a) that of insofar it reaches

financial transactions unrelated to trade. Second, the Foreign Assistance Act does not provide penalties criminal for violations of the regulations promulgated under it. TWEA provide. does so See 50 U. S. C. App. §16. 226 of war.2 times emergencies and peacetime

dealing both with an such constitute Regulations Control Assets Cuban The with adopted deal originally They were embargo.3 attempts destabi- by Cuban emergency created peacetime Presiden- See America. throughout Latin governments lize Comp.).4 (1959-1963 157 CFR 3447, 3 No. Proclamation tial part: 2 relevant in provided 5(b) TWEA 1963, emer- national period any other during orwar time “(1) During the agency any through may, President President, by the gency declared regulations and rules such otherwise, under and or designate, may he licenses, or otherwise— instructions, by means prescribe, may as he foreign in any transactions prohibit, or regulate, investigate, “(A) any toor through, between, by, payments or of credit transfers exchange, melting, or hoarding, exporting, importing, institution, and banking securities, and currency or bullion, or coin or silver gold earmarking or void, prevent nullify, compel, direct regulate, investigate, “(B) withdrawal, transfer, use, withholding, holding, acquisition any prohibit, exercising in, or dealing of, or exportation or importation transportation, involving, transactions to, or respect privilege power, right, any any has thereof or a national country foreign any in property any ed.). (1958 §App. interest_” S. C. 50 U. States United after months 1917, six passed first was TWEA As 411. 106, 40 Stat. 1917, ch. 6, of Oct. Act I. See War World entered of economic use the President’s only with dealt enacted, TWEA originally peacetime to deal expanded Act The of war. in times 1, 48 Stat. 1933, 9, ch. of Mar. Act in 1933. emergencies national Secretary of the to the TWEA under his delegated has has in turn (1942), who 1174,1175 9193, 3 CFR No. Order Treasury, Exec. Treasury Control, Assets Foreign Office authority to delegated that 1962). (Rev. 1, Oct. No. Order Department Vietnam, and Korea, North against place are embargoes Similar (1983). pt. 500 31 CFR See Cambodia. expanded incorporated Regulations Control Assets Cuban 4 The Reg. g., 27 Fed. See, e. Cuba. on imposed sanctions economic prior upon Bull. Dept. State Cuba); 43 from imports embargo (complete (1962) Cuba). exports industrial for most licenses export (denial (1960) these behind policies of the statement complete a more For Report see imposition, their precipitated circumstances Eighth Meet VIII 1 and II. Study Resolutions Committee Special G/IV, Affairs, OEA/Ser. Foreign Ministers Consultation ing of “[E]xcept specifically authorized the Secretary of the Treasury,” Regulation 201(b) prohibits all “transactions in- volv[ing] property in which any [Cuba], or national thereof, . any has indirect_” . . any interest of nature whatsoever, direct or §515.201(b)

31 CFR (1983). Regulation 1977, 560 was added to the Cuban Assets Regulations. Control §515.560 See 31 CFR (1977).5 Regu lation 560 general embodied a license permitting “persons who visit pay Cuba to for transportation their and mainte expenditures nance (meals, hotel etc.) bills, taxis, while in Cuba.” 42 Reg. (1977). Fed. Thus, travel-related economic transactions with Cuba were, for part, the most exempted from the complete embargo Regulation 201(b).6 persons All engaging in travel-related transactions, however, required to make “a full and accurate record of' each such transaction” keep and to those records available for inspection for at years. §515.601. least two And the general license Regulation contained in subject 560 was revocation or any modification § “at time.” 515.805. Later in 1977, of TWEA was amended to limit the power pursuant to act to that solely statute times of war.7 In the same bill, a new law was enacted to pp. (1963); 14-16 Cuba, Dept. of State Pub. No. 7171, pp. (1961). 25-36 See also Zemel v. Rusk, 1, 381 U. S. (1965). 14-15 5 Regulation 560 was first passed on March 1977. 42 Fed. Reg. It was amended May 18, 1977, to further relax existing restric- tions on travel-related transactions with Cuba. 42 Fed. Reg. 25499. 6Some 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 purchased personal use only and could not be resold. 515.560(a)(3) CFR (1977). Also, sched uled air and sea travel to Cuba was still prohibited, § 515.560(a)(5), as were any contracts between domestic credit card issuers any Cuban enter prises “for the extension of credit to any traveler for any purpose,” § 515.560(a)(7). I, Title §101, of Pub. L. 95-223, 91 Stat. 1625, §5(b) amended TWEA “by striking out ‘or during any period other of national emergency 228 emergency economic exercise President’s the cover Emergency International crises. peacetime response to

in 91 95-223, L. (IEEPA), Pub. II, Title Act Powers Economic seq. The § et 1701 C.S. 50at U. seq., codified et 1626 Stat. § are by IEEPA 203 President the to granted authorities 5(b) the but TWEA,8 as essentially same different. are exercise their procedures and 202(a) conditions authorities provides that IEEPA Section deal to “may §203 exercised by President granted the its has extraordinary threat, which any unusual with States, the United part outside or substantial in whole source economy of the policy, or foreign security, national to emergency national declares President States, if United 1701(a). The C.S. 50 U. respect threat.” such to to instance,” possible every required, “in also President authori- exercising IEEPA his prior Congress to consult report to exercised, have been authorities such once and, ties any taken the actions on every months six Congress to §1703.9 underlying circumstances. changes in the declare to President requiring the than rather However, existing continue to emergency in order national newa Congress against Cuba, embargoes, such economic existing exercises decided 101(b) Public Section authorities. emergency” “national provides: 95-223 Law by subsection made

“Notwithstanding amendment by sec- upon conferred (a), authorities Enemy Act, Trading With tion (A).” For subparagraph preceding text in the President’ by the declared 2, supra. n. amendment, see to this prior §of text are (1981). There 8 654, 671 Regan, U. v. & Moore Dames See IEEPA does grant of authorities differences, however. some regulate assets, to) foreign (i. e., take title to vest power include to seize bullion, or gold regulate transactions, domestic purely (1977). 95-459, 14-15 pp. Rep. No. H. R. See records. any declared terminate itself reserved has § 1622. U. S. C. resolution. by concurrent emergency national being respect exercised with country to a July 1977,as a result of a emergency national declared President before may such date, continue to be exercised respect with country to such . . . 91 Stat. 1625, note following §App. 50 U. S. C. 5. grandfather provision This provided also “[t]he Presi- may dent extend the exercise of such one-year authorities for

periods upon a determination for each such extension that the exercise of such authorities respect country such for year another inis the national interest of the United States.” Ibid. Presidents Reagan, Carter and years in each of the since ATWE was amended, have determined that the contin- § ued exercise of respect authorities with to Cuba is in the national interest.10

In 1982,in order to “reduce Cuba’s currency hard earnings by from persons travel U. S. to and Regula- within Cuba,” tion 560 was amended general to curtail the permit- license ting travel-related economic transactions. Reg. 47 Fed. (1982).11 17030 Regulation As amended, only 560 licenses travel-related economic transactions in connection with cer- types tain of travel, such as officialvisits, gathering, news professional research, and visits to close relatives. 31 CFR §515.560(a)(1)(1983). “[FJully sponsored or hosted travel,” any does not involve economic benefit Cuba, is permitted. also §515.560(j). General tourist and business 10 See48 Reg. Fed. 40695 (1983); Reg. 47 Fed. (1982); 39797 46 Reg. Fed. (1981); 45321 45 Reg. Fed. (1980); 59549 44 Reg. Fed. (1979); 43 Fed. (1978). Reg. 40449 11 Regulation 560 was again amended in July year of that to further clarify the scope permissible travel-related transactions with Cuba. 47 (1982). Reg. Fed. For a statement policies behind the amend ments, see Declaration of Enders, Thomas O. Assistant Secretary of State for Affairs, Inter-American 5-14, ¶¶ App. 172-177; Declaration of James Michel, H. Acting Assistant Secretary of State for Inter-American Affairs ¶¶3-7, App. 178-181; Myles Declaration of R. R. Frechette, Director, Office Affairs, of Cuban Department of ¶¶ 4-10, State App. 107-108. See infra, also at 243. authoriza- from excluded specifically is however, travel, 515.560(a)(3).12 general license. in the contained tion Reg- challenged amendment respondents noted, As constitutional statutory and number on a ulation only contentions, important of these Most grounds. claim is below, court passed on one promulgated not it was because invalid amendment The by IEEPA.13 mandated procedures accordance set procedures follow it did agrees that Government for relies but 560, Regulation it amended when IEEPA out on amendment statutory “authori- preserved those 95-223, which Law Public July TWEA pursuant to being exercised” . . . ties “authority” to argues that Government being was Cuba transactions regulate travel-related regulation of general part of the July 1977,as on exercised property 201(b). Thus, Regulation in contained transactions actually prohib- transactions such though most even the Government license, general theof July 1 because on ited was them prohibit contends preserved. rejecting the for gave reasons three Appeals The Court plain lan- on turn, in based, argument Government’s purpose underlying history, and legislative guage, com- a matter “as First, to TWEA.14 amendment 1977 may be licenses 12 special provides 560 Regulation amended, As “persons by transactions for travel-related cases appropriate in issued purposes reasons, for or for humanitarian Cuba desiring to travel CFR 31 activities.” exhibitions, similar public performances, public (1983). 515.560(b) violated 13 restrictions travel the 1982 claimed also Respondents on area prohibits 211a, which §C.S. Act, U. Passport the author they exceeded circumstances; that except in certain passports respond they violated IEEPA; and and by TWEA ity conferred travel, due right including the rights, Amendment Fifth First ents’ 14, App. ¶ Complaint See protection. equal process, accepted the second Circuit the Eleventh Appeals The Court passed under regulation striking another down in reasons of these third mon sense and English,” common the court stated, restrict- ing commodity purchases and restricting purchases travel would seem to very be different “exercises” of authority— enough “different at least not to count as the exercise of the same authority.” 708 F. 2d, at 796. Thus, gov- since “the ernment was not restricting travel to July Cuba” on 1, 1977, its authority to do so grandfathered. was not Ibid. Second, thought court legislative that the history showed that Congress intended grandfather clause to narrowly be interpreted to allow the President to continue in only effect specific actually “restrictions” place in July 1, 1977. “It did not want the existence of one sort TWEA restric- tion in 1977 to justification serve as a for imposing a new one.” Id., at 798. Finally, the Court Appeals concluded purpose that the grandfather behind the clause solely preserve current restrictions as bargaining chips negotiations with the affected countries. To require the President to announce publicly a new declaration of emergency in preserve order to existing restrictions on transactions with those countries might have undesirable ramifications. On the other hand, simply to abandon the restrictions any quid without pro quo could equally undesirable. Thus, the allowed current restrictions to place. remain But, court concluded, it go beyond purposes permit clause to the augment to his bargaining powers by adding new restrictions. Id., 799-800.15 at. grandfather clause to the 1977 amendmends to TWEA. United States v. Frade, 709 F. 2d 1387, (1983). 1397-1402 15The Court of Appeals bolstered its conclusion with two additional con siderations. First, the court noted that our required cases it to “construe narrowly all delegated powers that curtail or dilute” the right travel, to Kent v. Dulles, 116, U. S. 129 (1958), and that “[t]hat principle of nar row interpretation applies here.” 2d, F. at 800. Second, the court noted that in 1978 Congress amended the Passport Act, 22 U. § S. C. 211a, prohibit to 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

II ultimately Appeals reasoning of the Court find the We language of the unconvincing counts. The all three on 5(b) § conjunction grandfather TWEA, with read clause, supports that, in the relevant contention the Government’s “authority” property regulate all transactions sense, the being including was transactions, travel-related Cuba, preserved. July therefore, was, 1977 and on “exercised” history apparent purpose legislative nor the And neither the sufficiently contrary supports the contention Act the 1977 actually statutory despite intended, that what language, any existing restrictions, so that to freeze embargoes require adjustment pending the declara- procedures emergency” “national under the tion of a new IEEPA. Law 95-223 refers to the clause Public 5(b) by upon section conferred the President “authorities ” Enemy Among Trading Act. those authorities authority “regulate any . . . . . . transactions involv-

is the any foreign any ing any property country . . in which . any App. has interest.” 50 U. C. national thereof had 5(b). no distinction the Presi- draws between Section authority over travel-related transactions and his dent’s authority property purposes over other transactions. For authority regulate TWEA, it is clear that travel- part general merely related transactions is of the President’s regulate property transactions.16 there is Thus, ‘savings government suggests, Passport clause’ would make the meaningless Cuba, Act amendment in terms of for the Executive Branch unilaterally impose imposing currency travel could Cuban 2d, at restrictions as it did here.” 708 F. encompassed Respondents argue power of TWEA never Respondents regulate Brief for travel-related transactions. 21-31. however, light sweeping statutory language, argument borders regulate frivolous. “any” The President is authorized transac involving “any” property foreign country tion in which a or national thereof “any” Payments meals, lodging, transportation interest. has

no basis for the Court of Appeals’ conclusion, drawn without reference to the actual language of TWEA, that the regula- tion of travel-related purchases must be based on a separate authority from that governing the regulation of other trans- actions involving property. In fact, they are based on the same authority.17

It is also clear that the President’s authority to regulate property transactions with Cuba and Cubans was being exer- cised on 1, July 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 the Treasury, all transactions involving prop- Cuba are all transactions 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 power to control them in response to a national emergency. See Dames & Moore Regan, v. S.,U. (“both at 672 legislative history and cases interpreting the TWEA fully sustain the broad authority of the Executive when acting under this congressional grant of power”); v. McGrath, 342 Guessefeldt U. 308, (1952). S. In the alternative, see Brief for Respondents 10-20, respondents argue that a 1978 amendment to the Passport Act, 22 U. § S. 211a, C. eliminated whatever authority the President once had to regulate travel-related transactions under TWEA. See L. Pub. 95-426, § 124, 92 Stat. 971. But the 1978 amendment to the Passport Act is solely directed 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, 437 153, U. S. 189-190 (1978);Morton v. Mancari, 417 U. 535, 549 (1974), respondents’ argument must rejected. The Court of Appeals’ reliance on the Passport Act in its construction of clause, see 15, n. supra, is similarly unpersuasive. proof 17 Further that Congress did not distinguish between travel- related transactions involving foreign property and other property transac tions, either when TWEA passed first or when it was amended in 1977, provided by 203(a) of IEEPA. Section 203(a), which delineates the authorities of the President following a declaration of national emer gency under the new procedures of IEEPA, merely tracks the language of of TWEA. See n. supra.

234 “any interest have nationals or Cuban Cuba

erty in which CFR indirect.” or direct whatsoever, any nature of all license, explicit an (1983). Thus, absent 515.201(b) all and, are property involving Cuban transactions prohibited. been have times, relevant with transactions travel-related most 1977, July 1, On general by a permitted were nationals Cuban and Cuba Presi- that change fact does that But license. respect to §5(b) authorities exercising his was dent that states specifically Section transactions. “by means may exercised therein granted authorities July 1977, 1, On otherwise.” or licenses, instructions, travel-related authority over exercising his was President general of a by means Cubans Cuba transactions prohibition categorical from exempted them which license 201(b). Regulation involving Cuban transactions travel-related time, that At require- recordkeeping subject still were property were (1977). Other §515.601 CFR 31of ments was license general supra. And 6,n. See imposed. also modification amendment, revocation, subject to expressly transactions travel-related Thus, §515.805. any time.” “at actions further subordinate made specifically “were Regan, v. Moore & Dames .” . . . might take license general (1981). when And 654, 453 U. transactions travel-related most so amended transactions such authorized, specifically longer no prohibition again, subject, once automatically became 201(b).18 Regulation been may have Circuit First for Appeals Court thinkWe states court embargo. the Cuban aspects some toas confused Depart Treasury “a Cuba traveling to from prevented are respondents ‘transportation- for paying from . . . them prohibits regulation ment for Cuba’ from to and travel ‘ordinarily incident expenses related’ including Cuba, within travel ‘ordinarily incident expenses any other per- goods in Cuba acquisition expenses living payment Since the regulate travel-related transactions was among those “authorities conferred upon the President” §by of TWEA “which were being exercised” with re- spect to Cuba on July 1, 1977, it seems to us to follow from a natural reading 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 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 1977, not to “prohibitions” actually place on that date. And it provides that those authorities “may continue to be sonal consumption there.’ 31 CFR (1982).” 515.560 2d, F. at 795. But, of course, 31 §CFR (1983) 515.560 prevent does not respondents from doing anything. As amended, it merely fails to include them in the license that grants it persons. some Regulation 201(b)’sgeneral prohibition on transactions involving property in which Cuba or Cubans have an interest is what, practical as a 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 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 separate no “travel restrictions,” either to be repealed in 1977 or reimposed in 1982. The source of all restrictions on property transac- tions 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 purchases travel and restrictions on com- modities purchases are “very different” exercises of authority. existing freeze Congress had wished If exercised.” explicitly. The easily so done have could it restrictions, generic term used instead so, but do it did fact Congress intended indicates “authorities,” embargoes. existing flexibility adjust some retain reading more constricted its Appeals felt Court legislative his- comported with grandfather We 95-223. Law Public surrounding enactment tory colloquy following between certainly agree would Secretary Cavanaugh Assistant Representative spokesman Bergsten, administration’s Treasury grandfather clause: reading supports a narrow bill, Bergsten, all, of Mr. First ... CAVANAUGH. “MR. [the understanding that your it grandfather- strictly restrict limit and clause] would 5(b) [of being under currently exercised ing of granted the authorities specific uses TWEA] employed June being as of Yes, sir. BERGSTEN. “MR. preclude the would And it “MR. CAVANAUGH. might the authorities by the President expansion employed June being as are but included be 1, 1977. right.”19 That is

“MR. BERGSTEN. appears to least construction agree a narrow alsoWe objections to, and Bingham’s Representative by supported language in a Subcommittee of, subsequent elimination pres- grandfathered expressly have would which draft staff §5(b) of under of ently authorities unused a “set deal with they used long as so TWEA the House Markup before Enemy Act: Trading with Revision (1977) Sess., 21 Cong., 1st Relations, 95th on International Committee Markup). (hereinafter cited already

circumstances” being dealt with under some other authority.20 But even if these only were the available indications of congressional apart intent from the language which enacted, we would grave have doubts they were suffi- cient to overcome what seems to us to be the generic clear,

meaning of the word “authorities.” Oral testimony of wit- nesses and individual Congressmen, very unless precisely di- rected to the meaning intended particular words in a stat- ute, can expected seldom be precise to be as as the enacted language permit itself. To regard what we as clear statu- tory language to be materially by altered such colloquies, place often take before the bill has achieved its final form, open the door to the inadvertent, perhaps planned, even undermining of language actually voted on by Congress signed into law the President.

20 Emergency Controls on International Economic Transactions: Hear ings before the Subcommittee on International Economic Policy and Trade of the House Committee on International Relations, 95th Cong., 1st Sess., (1977) (hereinafter cited as Emergency Controls Hearings). Under stood 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 lan guage, 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 provided authorities §by of TWEA: “We have reviewed the powers conferred under this draft. Frankly we believe that all powers the conferred are exercised and that there are no additional that could be exercised that are not already exercised.” Id., at 188. Represent ative Bingham then stated: “You have said, Ias it, understand that there is no need for subparagraph 2 [grandfathering presently unused powers], you that would not be disturbed the elimination of paragraph 2.” Ibid. Thus, the challenged language may simply have been deleted as surplus- age. so, If the deletion supports the view that phrase the “authorities being exercised” embraces much more than simply those restrictions actually in place July on 1, 1977.

238 legislative examination a full opinion, our floor markup sessions, hearings,

history Subcommittee —the support not Reports Senate and House and —does debates, place on actually in only restrictions that view the point crucial The grandfathered.21 be were July 1977, 1, Bingham Cavanaugh and the in discussion, even the that is “pow- existing of in terms consistently on carried excerpts, is existing “restrictions” of in terms not “authorities,” ers” and simply not history does legislative The “prohibitions.”22 conclu 21 erroneous light of its history in that read Appeals of Court The the from wholly different purchases of travel regulation the that sion supra, at See property. involving Cuban transactions other of regulation word the freely substituted also Appeals of Court 232-233, and n. legisla from drawing its conclusions in “authorities” “restrictions” iso onto fastened court Thus, the 2d, at 798. F. 708 history. See tive authority were of existing “uses” only that the effect lated statements not restrictions travel since that concluded grandfathered, be Ibid. imposed. now not could used, such currently being When argument. in this flaws already discussed have We § 5 TWEA of of light is read of language July 1, in effect on Regulations Control Assets Cuban of structure prop- all regulate authority to that the clear 1977, it becomes including nationals, and Cuban travel-related with Cuba erty transactions argue might One date. relevant on being “used” transactions, was phrase than narrower is somehow of authorities” “uses phrase that the only to refers former being exercised” . . . “authorities con- parse does not argument an if such even But restrictions. specific former, phrase, latter fact remains finely, the cepts too into law. enacted was Rep. (1977); 22 7, 10, 12-13 1, 95-459, pp. Rep. No. R. See, g., H. e. (remarks 207 Hearings, at Controls Emergency (1977); 95-466, pp. No. id., at 168 Majak), (remarks of Mr. id., at 147-148 Bingham); Rep. Rep. statement (prepared at 7 Markup, Cavanaugh); (remarks Rep. Cong.1Rec. Cavanaugh); Rep. (remarks of id., 21at Bingham); Rep. Bingham). (remarks (1977) history legislative statements explicit are even There being “authorities among transactions of travel-related regulation Hearings, Controls Emergency . . . to Cuba regard exercised Staff Majak, (remarks Mr. id., Santos); at 197 (remarks Mr. Trade) Policy and Economic International Director Subcommittee they are fact to the objected Cuba case of media, in the (“[T]he news countenance suggestion really meant “restrictions” though even it wrote “authorities.” Finally, reject we Appeals’ Court of pur view that the pose merely was preserve exist ing bargaining chips negotiations in with affected countries. There are some statements in the hearings Subcommittee the effect that existing embargoes should not be abandoned exacting without some negotiated sort of quid pro quo.23 But it is clear prime that the reason that existing embargoes grandfathered were 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 embargoes current implicated the bill bog would implementation down partisan disputes, thereby delaying procedures of the new of IEEPA.24 Report House explicit point. on this “Certain current uses of the authorities affected H. R. 7738 are particularly the total controversial—

U. S. embargoes trade of Cuba and Vietnam. The com- mittee considered carefully whether to revise, or encour- age the President to revise, such existing uses of inter- national economic transaction controls, thereby policies they reflect, legislation. The committee decided to revise current uses, improve and to policies procedures govern that wall future uses, in single a bill would be difficult and divisive. Committee members improved concluded that procedures for future use of emergency international economic should precedence take over changing existing By uses. subjected ato licensing process in order to travel to certain embargoed countries. That was certainly part of the exercise of authorities”). 23See id., (statement at 103 of Mr. Bergsten); id. at 12 (statement Prof. Andreas Lowenfeld). F. 24See Markup, at (prepared 7-8 statement of Rep. Bingham); Emergency Controls Hearings, at 207 (summary of staff draft); (remarks id. at 198 Rep. Whalen); id., (remarks at 190-191 of Mr. id., Santos); (remarks at 168 Rep. Bingham). without powers, these of existing uses ‘grandfathering’ ad- 7738 H. R. disclaiming them, endorsing or either im- try assure to to decision committee’s the to heres past possible remedy than rather uses future proved (1977). pp. 9-10 95-459, Rep. No. R.H. abuses.” Representative approach, noncontroversial Hewing this Sub- House responsible the of Chairman the Bingham, leg- that House “this the of Members the assured committee, against Viet- embargoes grandfathers specifically islation embargoes, existing other Cuba, Laos, Cambodia, nam, legislation.” byway any in (emphasis they not are that affected so reading added). Our (1977) 38166 Cong. Rec. 123 state- clear these with consistent is clause grandfather of Eliminating the effect. purpose itsof ments height- response to in existing licenses modify authority to of just sort sparked have Cuba with tensions ened avoid. designed controversy the (summary staff of Hearings, at Emergency Controls See Bingham). Rep. (remarks of draft); at id., Ill Presi- that find do if we urge finally Respondents regulations enforce Congress by authorized dent respondents’ violates enforcement their question, in here of Clause Process Due guaranteed right travel our rely number on a Respondents Amendment. Fifth beginning right, a such recognized prior decisions Respondents’ S.U. Dulles, 357 v. Kent with to these as some speaks undoubtedly counsel most travelers would-be represented he since cases, them. authorized Congress had held Court Kent, to applicants passport inquire Secretary State noted Party. Court Communist affiliation citi- ‘liberty’ which part a“is right travel id., law,” process of due deprived without cannot zen narrowly dele- all “construe it would stated gated powers that curtail or dilute” that right. Id., at 129.25 in Aptheker Subsequently, v. Secretary State, 378 U. 500, 514 (1964), the Court held that provision of the Subver-

sive 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 fol- lowing 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 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 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 13. The Court went on to note that, although the ban in ques- tion effectively prevented travel to Cuba, and thus dimin- ished the right to gather information about foreign countries, no First Amendment rights of the sort that controlled in Kent Aptheker were implicated by the across-the-board re-

25In Kent, 357 U. S., at 126-127, the constitutional right to travel within the United States and the right to travel abroad were treated indiscrimi nately. position That has rejected been in subsequent cases. See Haig v. Agee, 453 U. 280, S. (1981) (“the to travel freedom outside the United States must be distinguished from the right to travel within the United States”); v. Aznavorian, Califano 439 U. (1978). 176-177 Amend- Fifth found Court And Zemel. in striction to overcome insufficient standing alone, travel, right to ment restriction. supporting justifications policy foreign is case challenged this in restriction “That national considerations weightiest by the supported recalling by up pointed perhaps best security is filing preceded October crisis missile Cuban months.” two by than less complaint appellant’s atS.,U. re- travel between differentiate no reason seeWe case present by imposed

strictions Secretary State by the imposed passport travel preventing effect practical have Both Zemel. justified are both citizens, American by most to Cuba policy.26 foreign weighty concerns missile only Cuban feel apparently Respondents international area offing make will in crisis “emer- no argue there They constitutional. travel between relations time present gency” “only ‘normal’ subject to are States United Cuba affairs.” international contemporary in inherent tensions however, Zemel, holding in Respondents Brief analy- policy foreign independent Court’s tied was . ... foreign relations of conduct relating “to Matters sis. of political branches exclusively entrusted so are inquiry judicial from largely immune to government U. S. 342 Shaughnessy, v. Harisiades interference.” example of merely an holding Zemel (1952). Our matters political branches deference classical policy. foreign respondents upon (1967), Laub, 385 U. v. States United indictment an whether statutory question only a rely, involved

also In our States. the United laws under a charged crime properly here. presented the issues light on no sheds view, case The Cuban Assets Regulations Control promul- first gated during the administration of President Kennedy. They have been though retained, alternately loosened and tightened in response specific circumstances, ever since. In every year since the enactment of IEEPA in 1977, first President Carter and then Reagan have deter- mined that the continued exercise authorities of against ATWE Cuba is in the national interest. See n. 10, supra. Since both were acting under the of Public Law 95-223, there legal was no requirement that either of proclaim them a new national emergency under the procedures of IEEPA. But the absence proclama- of such a tion does not detract from the presented evidence to both the District Court and the Appeals Court of to the effect that relations between Cuba and the United States have not been “normal” for quarter the last century, and that those relations have deteriorated further in years recent due to increased Cuban efforts to governments destabilize through- out the Hemisphere. Western See Enders ¶ Declaration 5, App. 172. opinion

In the of the State Department, Cuba, with the political, economic, military backing of the Soviet Union, provided has widespread support for armed violence and terrorism in Hemisphere. Western Cuba also maintains close to 40,000 troops in various countries in Africa and Middle support East in objectives inimicalto 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, 319 (1936), we think there is adequate an basis under the Due Process Clause of the Fifth Amendment to sustain the President’s de- cision to curtail the flow of hard currency to currency Cuba— that could then support used in of Cuban by adventurism — restricting travel. Zemel v. supra, Rusk, at Haig 14-15; Agee, v. 453 U. S. (1981). 280, 306-307 244

I V language analysis the of anon based conclude, we sum, legis- purpose and its as well clause grandfather of the of of authorities grandfathered history, the that lative the statutory basis adequate an provide TWEA travel- permissible scope of restricting the amendment We nationals. Cuban Cuba with transactions related free- the violate not do restrictions such that conclude also of Clause Process by Due protected travel dom Amendment. Fifth Appeals is of Court judgment The Reversed. Brennan, Justice whom with Blackmun, Justice dissenting. join, Powell Justice Marshall, Justice travel- restrictions concede parties All (1982), Reg. 17030 Fed. Cuba, in expenditures related procedural conformity promulgated not were Emergency Economic International of requirements 1626, 91 Stat. II, Title 95-223, L. Pub. 1977, ofAct Powers (IEEPA). Thus, §§1701-1706 C.S. 50 U. L. Pub. by they authorized unless invalid are IEEPA. clause grandfather 1625, Stat. 95-223, encom- agree I do Because I here, power issue Presidential exercise passes the Court States the United judgment affirm Circuit. First Appeals for rH prob- address 95-223 Law Public promulgated Trading the With drafters unforeseen

lems C. 50 U. amended, 411, as 40 Stat. Enemy of Act of several one (TWEA). TWEA seq. § et App. 1 Presi- Congress’ conclusion reflected statutes war times increased have should dent situa- crisis respond such order emergency in national require. Accord- they alacrity coordinated tions ingly, the provided TWEA the President with a range broad over international trade in time of war or “national emergency.” Although provided TWEA procedures clear for enhancing

the authority of a President when an emergency arose, the Act contained no provision similar to reduce the President’s authority to its scope normal when the emergency subsided. Once the President had declared a state of national emer- gency, the emergency officially continued to exist until the President declared that it had ended. Until such a declara- tion of termination was made, the President enjoyed the broad authority that the TWEA upon conferred him to address 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 longer could no pose be said to a threat of emergency propor- tion to the Nation. generally See Emergency Controls on International Economic Transactions: Hearings before the Subcommittee on International Policy Economic and Trade of the House Committee on International Relations, 95th Cong., 1st (1977) (Subcommittee Sess., 16-19 Hearings) (statement of Prof. Andreas F. Lowenfeld); id., at 27-31 (statement of Prof. Maier). Harold G.

Because pattern of of behavior, TWEA emergency authority operated as one-way ratchet to greatly enhance the President’s discretionary authority foreign over policy. At the time began to consider amendments 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; Nixon’s 1970 declaration concerning a Post Office strike, Presidential Proclamation No. (1966-1970 3972, 3 CFR 473 Comp.); and President Nixon’s 1971 declaration concerning country’s balance-of-payments problems, Presidential Proclamation (1971-1975 No. 4074, 3 CFR 60 Comp.). The 246 ex- connection in invoked often most emergency

national been had that emergency the was powers TWEA of ercises in Truman President 1950, by 16, December declared Presidential conflict. Korean developing to the response Proclamation That A454. 2914, 64 Stat. No. Proclamation of Because aggression. Communist of threat the of warned broad retained President the emergency, of this declaration that anything to respond to duration indefinite of authority spread threat general the to related be could logically of Communism. of grant broad that feeling widespread was There TWEA, the of intent conflicted powers emergency to situa- respond to President a empower sought immediate requiring threat imminent an that presented tions before testified who witnesses expert The response.1 consensus general expressed Subcommittee House flexi- aas used been had inappropriately TWEA 5(b) of § situations. nonemergency policy foreign of instrument ble (statement 13-14, 16 at Hearings, g., Subcommittee e. See, lim- constraint (“no Lowenfeld) practical F. Andreas Prof. of measures emergency under taken actions iting Prof. of (statement 22-23 at id., emergency”); related permissiveness legislative of Maier) (“combination G. Harold has 40 years past over assertiveness executive of allocations functional in the shift a significant created id., commerce”); foreign regulate power constitutional (suggesting Metzger) D. Stanley Prof. of (statement at larger effort aof part powers TWEA scrutiny of Congressional 1976, powers. emergency all of bases review 94-412, 90 Stat. L. Act, Pub. Emergencies National enacted Congress 101(a), provided § which, by its seq., et § 1601 C. U. S. 1255, 50 emergency national states existing pursuant exercised powers National The enactment. date its after years two within terminated several TWEA exempted however, Act, Emergencies order to requirement termination 2-year from provisions other consideration thorough more for opportunity Congress afford provisions. by those upon the conferred procedures 1-2. Hearings, 1259; Subcommittee (b), 90 Stat. 502(a)(1) and §§

necessary checks and limitations on executive use of powers); (statement id., at 83 of Peter Weiss, Center for (TWEA Rights) Constitutional prime “a example of the proliferation unchecked power Presidential purposes totally unforeseen power”). creators Members who heard testimony found convincing. it g., e. See, Rep. H. R. (1977) No. p. 95-459, (§5(b) “has essentially become an grant unlimited of author- ity”); Trading Revision of Enemy with the Markup Act, before the House Committee on International Relations, 95th Cong., (House (1977) 1st Sess., 8 (statement Markup) Rep. (“Section Bingham) 5(b) has become a grab-bag of authorities which Presidents have been able to virtually use to do anything they for which could specific find no authority”). House Subcommittee Members also believed that some of the by actions taken the Executive Branch under the TWEA had, at shaky amost, foundation in emergency actual situa- tions. exchange an with Assistant Secretary of State Julius L. Katz, Subcommittee Bingham Chairman voiced his incredulity concerning the bases for certain then-effective regulations promulgated 5(b): under

“MR. BINGHAM. Mr. Katz, what is the national emergency currently facing us that warrants the use [TWEA]? under the . . . “MR. KATZ. It continues to be emergency involving the threat of aggression Communist which declared in 1950at the aggression time of the in Korea.

“MR. you BINGHAM. Are serious?

“MR. KATZ. That is the emergency, national Mr. Chairman, and it continues.

“MR. BINGHAM. emergency is the emergency that existed 1950?

“MR. KATZ. It has not been terminated.” Sub- Hearings, committee at 110.2 id., (remarks 2 See also of Rep. Bingham) (referring specifi cally to lack Cuba). of emergency with spokesmen from responses of generally with Dissatisfied Bingham criticized Representative Branch, Executive amend effort cooperation in lack administration’s observed: further He the TWEA. are facts, face the you have I

“Now think to continue free to be wants branch executive the basis degree discretion enormous an act although commonsense no emergency exists, an an called situation could term application emergency. you will, if aggression, of Communist threat “The face we competition which of Communist threat It permanent situation. is a Katz, Mr. world, going to define you are emergency unless an permanent today aas world in the exists situation term. justify you use of how see don’t emergency. I subcommittee,,and the reaction “Up now until that been had, has have we that the witnesses of

reaction one, quite incredible an in is we are that situation try conform substantially altered has it and Id., at 113-114. principle.” reality with and with discretion- to curtail Congress intended that clear It is had President foreign that affairs ary over longer fit “emergencies” no that past because accumulated goal, accomplish To term. conception Congress’ IEEPA. enacted and the TWEA Congress amended con- had TWEA Congress intact left during war, but removed time upon President ferred ain action authority for Presidential TWEA from the powers, Con- a substitute emergency. As national upon the power confer IEEPA promulgated gress substan- The national-emergency situations. IEEPA power under the President’s reach tive slightly narrower than it had been under the TWEA,3 and Congress placed procedural several restrictions on the Presi- dent’s exercise of the national-emergency powers, including congressional consultation, review, and termination. prospective

The nature of the Congress IEEPA left the dilemma of how to existing deal regulations that had promulgated been under obviously had not been issued in accordance procedures with the new set forth in the IEEPA. There were those on the House Subcommittee considering the amendments to the thought TWEA who there should be no grandfathering and existing regulations should be expire. allowed to g., e. See, Sub- Hearings, committee (remarks at 167, 168-169, Rep. (remarks Cavanaugh); id., Rep. Findley); id., at 119 (colloquy Rep. Bingham between Treasury Assistant Secretary Bergsten). approach Such an would have re- quired the President to evaluate each situation in regu- lations were in effect and to determine whether the need for regulations reinstitution of the justified a new declaration of emergency. national Others believed that should conduct such a review and determine which restrictions justified were still exigencies. current Rep. H. See R. No. response 96-459, at 9-10. to two related concerns, however, the view that there was a need for some sort of grandfathering finally day. carried the argument supporting first clause preserve the desire to bargaining administration’s position dealing with countries that subject were existing embargoes Testimony asset freezes. before 3 powers Four upon conferred the by President the TWEA were not included in powers the upon conferred the President for use in time national emergency under the IEEPA. (1) Those four are: the power to take title foreign (2) to property; power the regulate to purely (3) transactions; domestic power the regulate gold (4) bullion; power to seize records. 250 President that the view expressed Subcommittee

House conces- unilateral to make Congress forced by not should of exercises targets had been to countries sions believed words, many In other 5(b) authorities. chips” “bargaining up to give not be forced should President on countries from in return something receiving without Hearings, Subcommittee negotiations. of the side other Lowenfeld) Cuba [the (“perhaps Prof. (statement of at 19 pro a quid . . without . terminated not be should embargo] Treasury Assistant (statements of 113, id., at quo”); embargoes (unilateral termination Bergsten) Secretary position negotiating the U. undermine severely “would Cong. n with posture”); worldwide our countries, and Whalen). (remarks Rep. (1977) Rec. of a grand- form some in favor of argument

The second wit- of the the first. Several related clause father felt that the bill on hearings testified at nesses who a new need to declare be faced not should President restrictions. existing continue in order to emergency national reverberations foreign policy have a declaration Such situa- a sensitive into tension new might inject own, of its e. Sub- See, g., the decline. were on tensions in which tion Lowenfeld); of Prof. (statement Hearings, at committee Depart- Santos, Treasury (remarks of Mr. 191-192 id., at incongruous, adviser). have been It would attorney ment to declare President force for words, other avoid simply situations in nonemergency emergencies new reasons, negotiating that, end restrictions having unilaterally. be ended should had concluded President desire their voiced of grandfathering The proponents con- to fit these narrowly be tailored the grandfather the clause Subcommittee, form before early In its cerns. 101(b)(1) (2), which read: §§ subparts, two contained sec- “(1) upon conferred any Act, Enemy with the Trading tion a set of circumstances respect exercised being national of a result Act of this enactment date emergency by declared the President before such date of may enactment, continue to be respect exercised with such set of circumstances; and “(2) any other authority upon by conferred may section be exercised to deal with the same set of circumstances.” Subcommittee Working Draft of June 8,1977, Cong., 95th §101(b) 1st Sess., (emphasis added). response question to a about meaning §of 101(b)(2), Subcommittee Staff Roger Director R. Majak explained the purposes provision: “[W]ith respect any 5(b) uses of any authorities for

presently existing only situation, not couldthe President particular use those authorities that he is using, now but any others which are conferred 5(b). section “So if the President is presently using asset controls particular toward a country, but is using, not let say, us currency controls, he nonetheless could use, at some later date if he so desired, currency controls respect to the situation. “I think it boils question down to a of whether we are grandfathering particular a situation, and all the may be necessary to deal with the situation, or whether we are grandfathering particular authori- ties themselves and usage.” their Subcommittee Hear- ings, at 167. Representative Bingham voiced opposition his to such a broad clause. “I question have serious about that. It seems to me if the President up has to now used some author- ity that he has under section in connection cases where has applied, been I don’t know why it should be necessary give him authority to expand what already has been done. really It is going

beyond grandfathering. what to applies grandfathering that me to “It seems ample author- be should that and date, to done been has ity.” Ibid. presented bill draft the from 101(b)(2) removed was Section information of sorts fewof think I can Committee.4 the

to significance the to minimize attempt Court’s by the persuaded not 4 Iam all, when 20. First 237, n. ante, at 101(b)(2). See §of deletion the adviser) attorney Department (Treasury Santos Mr. colloquy between the major that context, is clear it read Bingham is Representative and was Bingham Representative and Mr. Santos both for concern area ability to on the placed be should conditions what question being exercised currently were that authorities those exercise to continue a declare to required be should e., whether 5(b), i. § under con that declare to required merely be or emergency national continuing entire reading A careful interest. national inis exercise tinued 187-197, suggests at Hearings, Santos, Subcommittee see testimony of Mr. not were Mr. Santos and Bingham Representative points, that, various never There comments. and questions another’s understanding one all that comment Santos’ of Mr. import minds” “meeting of any no [were] there that being] exercised [were conferred powers “the [being] already [were] that exercised could that powers additional Id., at exercised.” meant, that Santos Mr. that assume nonsensical Further, is it all mean, that him to understood have could Bingham Representative were that countries respect exercised being 5(b) were powers § 5(b). exam- For § under promulgated regulations subject of currently the addition well aware were conversation in the participants both ple, Cuba, there Cambodia, and Vietnam, Korea, of North embargoes seq. et §505.10 31 CFR Regulations, Control Transaction in effect were from States” United within “person any prohibited (1977), which a for destined commodities strategic country foreign any from purchasing CFR Regulations, Control Funds Foreign country, and Communist Germany, East assets certain blocked (1977), which seq. et §520.01 blocked been had Estonia Lithuania, and Latvia, Czechoslovakia, legis- nothing in litigation this party No II.War World during all view support any is that there history suggest lative Mr. countries. all these respect being exercised under it wise not think I and do confusing, ambiguous statement Santos’ clear over doubt a shadow exchange to cast isolated single, allow 101(b)(2). §of deletion import routinely legislative found in histories that give clearer indication that Congress intended to only regulations and restrictions already had been exercised.5 When the full House Committee viewed after §101(b)(2) had been Representative deleted, Cavanaugh sought to ascertain that the clause was drawn narrowly as possible only to include regulations currently in effect: “MR. CAVANAUGH. . . . First of all, Berg- Mr.

sten, your would it be understanding that section 101 strictly would limit and restrict the grandfathering of powers currently being 5(b) exercised under to those specificuses of the granted 5(b) authorities in being em- ployed as of June 1, 1977. “MR. BERGSTEN. Yes, sir. “MR. CAVANAUGH. And it preclude would expansion by the President of the might authorities that be included in but are being not employed as of

June 1, 1977. “MR. BERGSTEN. right.” That is Markup, House at 21. In explaining the effect grandfather clause to the full House Representative Committee, Bingham stressed 5That the Subcommittee grandfather wanted the clause to be read nar rowly is also evinced by suggestions that the Subcommittee find ways to convey its intention that the grandfather provision be tightly construed. Subcommittee Hearings, (remarks at 212 of Rep. Findley). In response, Representative Bingham suggested that the changes in the bill discussed during the hearings incorporated be and that the bill reported be to the full Committee before further amendments were made. Obviously sympa thetic to any means of clearly delimiting the scope of grandfather clause, Representative Bingham, who had suggested deleting § 101(b)(2), encouraged Representative Findley present to his suggestions to narrow scope of the clause to the full Committee Representative if Findley felt that such narrowing were still necessary after the bill had been amended according to the Subcommittee’s specifications. Subcommittee Hearings, at 212. “specific current intact leave “neither the bill emphasized that authorities” of uses Id., at existing policies.” condemns nor condones grand- to decision emphasize that important It aat being exercised authorities specific uses father acknowledgment congressional reflect did date certain to true addressed fact in of authorities uses openly ex- Congress contrary, theTo emergency situations. restrictions grandfathered many view its pressed Rep. R.H. emergency situation. an basis real no had justified as could (few uses current 95-459, at No. situations). Responding emergency existing responding proce- provided annual expressly sentiment, authori- grandfathered continuation governing dures govern the procedures from are different ties that pursuant entered any new exercise continued future respect emergency. With state a new decision power, the emergency exercises emergency, national proclamation effect continue subject to are thereunder, promulgated regulations 1622(b), §§C.S.U. See by Congress. review semiannual authorities, grandfathered respect 1641(c). to With con- find only requires grandfather interest. national authority in the exercise tinued Hearings, at App. §5; Subcommittee 101(b), C. U. perpetuating avoided way, Subcommittee this In 208. emergencies under national “phony character” promulgated. 5(b) power were exercises current Santos, (statement Mr. id., also, See at 210. Id., adviser) (administration attorney Department Treasury of cur- good-faith declaration making difficulty have Cuba); House respect emergency with national rent Bingham). Rep. (remarks Markup, 3at IEEPA provision of grandfather sum, set particularized respond to narrowly to designed concerns. sought It placing avoid the President in the awkward situation either making unilateral concessions to subject countries to restrictions or declaring a new state of emergency respect country to a where none, in fact, Congress existed. concluded that objectives these fully served grandfather with a preserved clause that exist- ing gave restrictions, but the President no authority to impose new except through the new IEEPA procedures govern respond emergencies. new

II rejects Court interpretation narrow in favor of one that sight loses all general of the legislative purpose of the IEEPA legislative and the clear intent grand- behind the father clause. To achieve its labored result, the Court invokes a platitudes series of statutory interpretation, but ignores application their to this Ironically, case. very pieces legislative history that the Court justify cites to its clearly support result contrary view. Recognizing import the clear legislative history, the begins by Court discovering clarity absolute “plain in the language” of the statute. The Court focuses on the fact Congress used the term “authorities” in the clause instead of either the word “pro- “restrictions” Finding hibitions.” what, in its view, is a vast difference meaning between the of the first term and that of the latter two, the Court concludes that if had meant “restrictions” it would have explicitly. said so Ante, at But the Court’s confident claimthat statutory language is ambiguity without pure ipse dixit. The Court concedes throughout legislative history Congress referred what it grandfather wanted to as “restrictions,” “controls,” “specific “prohibitions,” uses,” “existing uses,” and “authori- ties.” It is Congress true that used the word “authorities” when it drafted the statute, but there nothing is to indicate any intent express to “authorities” term the used it that history. legislative plain the made is that than other used “authorities” term the likely that reason 5(b) simply that is “prohibitions” as such a term of instead prohi- issue than more much do to President a authorized uses the grandfather to Congress intended bitions, and §5(b) the authorizes example, For well. powers as those activities various investigations conduct to President foreign nation- foreign countries the assets “freeze” to Presi- IEEPA, Congress enacted time At the als. countries, several over authorities these exercised had dent grand- clearly to intended Congress including Cuba, these exercise Because exercises. those father it “prohibitions,” such naturally word a within fit not does term. use Congress not did surprising that hardly is why to question as Court's to answer short Thus, simply that is “prohibitions” term use Congress not did prohibitions. mere than more include Congress intended suggest, statute of the language nothing in the There grandfather clause Congress intended however, re- authority increase provide President a following country without particular a applicable to strictions history makes legislative theAs procedures. IEEPA . . . “authorities all grandfathered when clear, 5(b) § preserve the uses sought to it being exercised,” past employed in the had President authorities Represent- As more. no particular situation—but a address “if the bill, stated: principal drafter Bingham, ative has he some up used to now has where cases in connection section under necessary to why it should know I don’t applied, been has already done.” been has expand what authority to give him Hearings, Subcommittee history legislative downplay clear its effort platitudes about on relies the Court clause, history. The Court legislative relying such hazards correctly states: testimony

“Oral of witnesses and Congress- individual men, very unless precisely directed to the intended meaning particular words in a statute, can seldom be expected precise to be as as the enacted language itself. permit To regard what we statutory clear language to materially by altered colloquies, such which often place take before the bill has achieved its final form, open would the door to the perhaps inadvertent, or even planned, undermining of the language actually voted on by Congress signed by into law the President.” Ante, at 237.

I disagreement have no with generalities; these they simply have no relevance to this case. “colloquies” referred to involve the drafters of the Act, are directed at the precise language grandfather of the clause, and either were addressed to the bill in its final form, or at getting aimed changes in the bill to deal precisely problem at issue in this case. Failing to heed its own advice, the Court then rely legislative on the history of the Act to congressional discern a purpose consistent interpretation with its of the statute. The Court concludes purpose that the grandfather prevent clause was to proposed bill from becoming again, controversial. Once I disagreement have no with general interpretation. But the misapprehends Court aspects of Congress statute feared would be divisive. Congress concluded that it would be controversial for it to existing examine controls they determine whether justified exigencies particular situations. H. R. Rep. No. 95-459, at Congress 9-10. And also felt it undesirable force the President either to declare na- new emergencies tional where none existed or to end obtaining quid without pro quo. Accordingly, Congress grandfather decided that it would what the already had versy” respect done particular situations. The “contro- hoped clause would authority to President’s the nothing to do had avert respond situations. future to matter this about confusion displays utter its The Court Report House from quotation aon through reliance its interpretation of broad supports its believes the Court that strong provides passage fact, clause. grandfather rejects. the Court interpretation that exactly the support for passage reads: The affected authorities uses current

“Certain the total particularly are H. R. controversial— The Vietnam. and embargoes Cuba trade U. S. revise, to carefully whether considered committee existing uses such revise, to encourage thereby controls, and transaction economic international The legislation. they reflect, policies uses, and current revise that decided committee govern will procedures that policies and future improve divisive. single would bill uses, in difficult proce- improved that concluded members Committee emergency international use dures future changing over precedence take powers should economic existing uses By ‘grandfathering’ existing uses. disclaiming endorsing or either powers, without these decision to the committee’s adheres H. R. them, remedy than rather uses improved try to assure future at 9-10 95-459, Rep. No. H. R. past abuses.” possible added). (emphases language, ante, quote this decision Court’s quotation makes By terms, its remarkable.

239-240, sought to avoid Congress controversy clear “existing judgment on passed Congress if arise controls, transaction economic international uses Accordingly, they reflect.” policies thereby “existing uses” clear also It is grandfathered them. Congress decided “policies”that controls” and “economic not to only review included “what has been done to date.” Subcommittee Hearings, (remarks at 167 Rep. Bingham). Congress had no hesitation about restricting the President’s authority to exercise the emergency powers pos- that he sessed but yet had not exercised. To contrary, as the quotation on which the Court mistakenly relies makes abso- lutely clear, primary purpose of the Act was to curtail “future uses” of precisely that authority. residual Thus, equally it is remarkable for the suggest Court to purpose protect is to “respon[d] heightened tensions with Cuba.” Ante, at 240. If thing one apparent is from the legislative history of the Act, it is Congress that was not persuaded that the realities of the situation in Cuba consti- tuted an emergency. supra, See at 247-249, 254-255. It is therefore incongruous somewhat to conclude Congress give intended to the greater President flexibility respond to developments in relations with Cuba than to events in spots other trouble around the world, such as Afghanistan, the Middle East, and Poland. respect With to future devel- opments in places, such the IEEPA makes clear that the President cannot use emergency his respond “heightened tensions” unless the President has decided that a state emergency exists, and has so Nothing declared. opinion Court’s explains why Congress intended such unevenness in the President’s authority respond to future events; and it certainly is why self-evident a less approach anomalous would have been “controversial.”6

6Even the manner in which Congress discussed the need for avoiding controversy on substantive suggests issues had no idea that grandfather clause would be read in the manner in which the Court has interpreted it. Representative Bingham explained the reason for grandfather clause: “We have also in grandfathered title I in essentially those actions taken under the [TWEA] which it would be extremely difficult, if not impossible, conclusion unsupported Court’s incongruity of full preserve Congress inserted embargoes,” existing adjust “flexibility to respect to apparent with more even perhaps 236, at ante, China with trade 1950, In China. with relations trade trans- property unlicensed on prohibition general by a halted Cuba. with trade prohibition general similar actions CFR (China) with (1977) 500.201(b) CFR Compare 31 however, (Cuba). In 515.201(b)(1977) equally broad enacting an prohibition general nullified detailing the Reg. 8584. Fed. license. general time §5(b) effect authority under exercises history of Report chronicled House IEEPA, follows: China trade sub- most licensed Department 1971, the May 8,

“On continuing the while China, transactions sequent before hands S. in U. assets blocking Chinese trade the U. lifting had This effect date. North embargoes of However, embargo China. R.H. continue.” Cuba Cambodia, Vietnam, Korea, added). (emphasis 6at 95-459, Rep. No. embargo to refer I time. reverse to Congress persuade to on. so Vietnam embargo against Cuba, the against substantive controversial with deal to attempt tous think “I lifting the favor personally I though even mistake abe would issues Markup, at House Vietnam.” Cuba against embargo alterna- anas grandfathering viewed Bingham Representative Obviously, 5(b) and § under currently in effect then regulations reviewring the to tive 11; 95-459, at No. Rep. R.H. also See lift. deciding which (arguing Findley) Rep. (remarks of Hearings, at Subcommittee “easy administration give thereby grandfather not should Congress id,., at countries); other with relations trade normal resuming avoid way” to grand- not or of whether (question Bingham) Rep. (statement id., embargoes); existing “disturb” not whether question father Markup, at House also see Bingham); Rep. (statement of at 7-8 discretion gives clause Whalen) (grandfather Rep. (remarks effect). currently in any controls continue No other reference to extant trade embargoes refers to a embargo trade against China. g., See, e. Subcommittee Hearings, (statement at 108 of Assistant Treasury Secretary Bergsten); (statement House Markup, at 8 Rep. Bingham). Thus, in eyes of Congress, the President was longer no exercising authorities respect with to trade with China even though a general nullified prohibition was still in effect. Congress presumably envisioned grandfather that the clause preserve the freeze on Chinese assets, but that all subsequent controls on trade would subject to the new procedures. IEEPA

The incongruity in the Court’s analysis arises because the position in 1977 respect to all trade with China was exactly position like his respect to travel- expenditures related in Cuba. If logic of the Court’s opinion in this case is Congress correct, grand- intended the father clause in the preserve IEEPA to the President’s authority to complete reinstitute a embargo trade with China simply by eliminating general license that was in effect at the time that the IEEPA passed.7 question There is no that enacted the IEEPA did imagine grandfather that the preserved the President’s author- ity to transform trade relations with country another from a situation virtually free trade to a situation complete em- bargo without following procedures. IEEPA To use Court’s words, ante, at 235, it “does undue violence to words chosen Congress,” say nothing congressional petitioners 7 The attempt to discount this incongruity by arguing that the issue of whether the President could have reinstituted the Chinese embargo under grandfather clause is “moot,” since the President ended use of against authorities China in 1980. See Reply Brief for Petitioners n. 18. While it may be true that the President cannot now resurrect embargo powers under clause with respect China because he has § allowed all authorities against used 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 to expire. reimposition the Congress considered suggest that

intent, to “existing anas with China trade on prohibition complete aof grandfather by the preserved authorities of exercise” embargo fits complete a reimposition of Surely, the clause. to emergency authorities uses” “future the within squarely procedures IEEPA new contemplated the Congress case this in presented situation The apply. an equally clear isit different, and nois respect to Cuba Congress considered what embargo is of Cuba in the increase protected authority not emergency use” “future to be grandfather clause. the Ill in expenditures travel-related restrictions the Because IEEPA conformity the in promulgated Cuba believe to reason no coherent is there because

and preserve the to Congress intended complying with without such institute dissent. respectfully I IEEPA, dissenting. Powell, Justice may Court judgment argue, the petitioners theAs regu- States. United interest best

inbewell acquire hard ability to today Cuba’s limit upheld lations might be found has Executive currency currency, limited, is role Our terrorism. support violence used of Con- sustaining intent ascertaining however, President responsibility of gress. It is foreign affairs. Nation’s course determine by Justice history canvassed legislative case, this unmistakably demonstrates opinion dissenting Blackmun’s expanding from bar Congress intended Contrary 5(b). authority under emergency exercise “authorities” meaning word the view, Court’s to the nor ante, see “clear,” is not history. import contrary the fair it my view

Case Details

Case Name: Regan v. Wald

Court Name: Supreme Court of the United States

Date Published: Oct 9, 1984

Citation: 468 U.S. 222

Docket Number: 83-436

Court Abbreviation: SCOTUS