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United States: Supreme Court Opinion in Regan v. Wald* (Treasury Regulations Preventing Travel to Cuba; Trading with the Enemy Act)*
Published online by Cambridge University Press: 04 April 2017
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- Judicial and Similar Proceedings
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- Copyright © American Society of International Law 1984
Footnotes
*
[Reproduced from the Slip Opinion provided by the U.S. Supreme Court.]
[The U.S. Court of Appeals for the First Circuit Decision in Wald v. Regan, of May 13, 1983, appears at 22 I.L.M. 805 (1983).]
[The U.S. Supreme Court Decision in Dames & Moore v. Regan, of July 2, 1981, appears at 20 I.L.M. 897 (1981). The International Emergency Economic Powers Act of December 28, 1977, appears at 17 I.L.M. 139 (1978).]
References
* [See I.L.M. pages 804 and 813 for dissents.]
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) (1982).
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 Government's Brief, at 4 n. 8. First, the scope of § 5(b) of TWEA, see n. 2, supra, appears to be broader than that of § 620(a) in so far 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 (1982).
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).
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 March 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).
3 Similar embargoes are in place against North Korea, Vietnam, and Cambodia. See 31 CFR Part 500.
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. State Pub. No. 7171, pp. 25-36 (1961). See also Zemel v. Rusk, 381 U. S. 1, 14-15 (1965).
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.
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). Also, scheduled air and sea travel to Cuba was still prohibited, id., at § 515.560(3X5), as were any contracts between domestic credit card issuers and any Cuban enterprises “for the extension of credit to any traveler for any purpose,” id., at § 515.560(a)(7).
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, infra.
8 See Dames & Moored. Regan, 453 U. S. 654, 671 (1981). There are some differences, however. The grant of authorities in IEEPA does not include the power to vest (t. 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. 459, 95th Cong., 1st Sess. 14-15 (1977).9 Congress has reserved to itself the authority to terminate any declared national emergency by concurrent esolution. 50 U. S. C. § 1622 (1982).
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).
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, 1115-14, J. A., at 172-177; Declaration of James H. Michel, Acting Assistant Secretary of State for Inter-American Affairs 113-7, J. A., at 178-181; Declaration of Myles R. R. Frechette, Director, Office of Cuban Affairs, Department of State 114-10, J. A., at 107-108. See also, infra, p. 20.
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 pubbe performances, public exhibitions, or similar activities.” 31 CFR § 515.560(b).
13 Respondents also claimed that the 1982 travel restrictions violated the 1978 Passport Act, 22 U. S. C. § 211a, 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 114, J. A., at 9.
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 amendmends to TWEA. United States v. Fmde, 709 F. 2d 1387, 1397-1402 (1983).
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. 116,129 (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. No. 95-426, § 124, 92 Stat. 971 (1978).
“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.” Id., at 801.
16 Respondents argue that § 5(b) of TWEA never encompassed the power to regulate travel-related transactions. Brief for Respondents, at 21-31.In light of the sweeping statutory language, however, this argument borders-on the frivolous. The President is authorized to regulate “any” trans action 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. 654, 672 (1981) (“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, 319 (1952).
In the alternative, see Brief for Respondents, at 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 travelrelated transactions under TWEA. See Pub. L. 95-426, § 124, 92 Stat. 971 (1978). 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 U. S. 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, 189-190 (1978); Morton v. MancaH, 417 U. S. 535, 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.
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.
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 travelling 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 doesn't 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 travelling to Cuba.
On the next page of its opinion, the court states that “[although 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.
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].
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 Rep. 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. Rep. 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.
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 pp. 9-10 and n. 18, supra. 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. Id., at 798.
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.
22 See, e. g., H. R. Rep. No. 459, 95th Cong., 1st Sess. 1, 7, 10, 12-13 (1977); S. Rep. No. 466, 95th Cong., 1st Sess. 1, 4 (1977); Emergency Control 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 (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 215 (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.”).
23 See Emergency Control Hearings, at 103 (statement of Mr. Bergsten); id. at 12 (statement of Prof. andreas F. Lowenfeld).
24 See Markup, at 7-8 (prepared statement of Rep. Bingham); Emergency Control 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).
25 In Kent, 357 U. S., at 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, 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, 176-177 (1978).
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.
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 two-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(aXD and (b), 90 Stat. 1258, 1259; Subcommittee Hearings, at 1-2.
2 See also id., at 117, 119 (remarks of Rep. Bingham) (referring specifically to lack of emergency with Cuba).
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.
4 I am not persuaded by the Court's attempt to minimize the significance of the deletion of § 101(b)(2). See ante, at , 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 suggests 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(bX2).
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.
“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).
7 The Solicitor General attempts 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 can not 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.