JUSTICE REHNQUIST delivered the opinion of the Court.
Respondents are American citizens who want to travel to Cuba. They are inhibited from doing so by a Treasury Department regulation, first promulgated in 1963, which prohibits any transaction involving property in which Cuba, or any national thereof, has "any interest of any nature whatsoever, direct or indirect." 31 CFR § 515.201(b) (1983) (Regulation 201(b)). For a period of about five years, "transactions ordinarily incident to" travel to and from as well as within Cuba were, with some limitations, exempted from the broad prohibition of Regulation 201(b) by a general license. See 31 CFR § 515.560 (1983). But this general license was amended in 1982, and the scope of permissible economic transactions in connection with travel to Cuba was significantly narrowed. 47 Fed. Reg. 17030 (1982).
Respondents challenged the amendment to the general license on constitutional and statutory grounds and sought a preliminary injunction against its enforcement. The District Court for the District of Massachusetts concluded that respondents had not demonstrated a substantial likelihood of
Regulation 201(b) was promulgated in 1963 as part of the Cuban Assets Control Regulations, 31 CFR pt. 515 (1963), implemented under the Trading With the Enemy Act of 1917 (TWEA), 40 Stat. 411, as amended, 50 U. S. C. App. § 1 et seq. See 28 Fed. Reg. 6974 (1963).
In 1977, Regulation 560 was added to the Cuban Assets Control Regulations. See 31 CFR § 515.560 (1977).
Later in 1977, § 5(b) of TWEA was amended to limit the President's power to act pursuant to that statute solely to times of war.
Section 202(a) of IEEPA provides that the authorities granted the President by § 203 "may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." 50 U. S. C. § 1701(a). The President is also required, "in every possible instance," to consult with Congress prior to exercising his IEEPA authorities and, once such authorities have been exercised, to report to Congress every six months on the actions taken and any changes in the underlying circumstances. § 1703.
However, rather than requiring the President to declare a new national emergency in order to continue existing economic embargoes, such as that against Cuba, Congress decided to grandfather existing exercises of the President's "national emergency" authorities. Section 101(b) of Public Law 95-223 provides:
This grandfather provision also provided that "[t]he President may extend the exercise of such authorities for one-year periods upon a determination for each such extension that the exercise of such authorities with respect to such country for another year is in the national interest of the United States." Ibid. Presidents Carter and Reagan, in each of the years since TWEA was amended, have determined that the continued exercise of § 5(b) authorities with respect to Cuba is in the national interest.
In 1982, in order to "reduce Cuba's hard currency earnings from travel by U. S. persons to and within Cuba," Regulation 560 was amended to curtail the general license permitting travel-related economic transactions. 47 Fed. Reg. 17030 (1982).
As noted, respondents challenged the amendment to Regulation 560 on a number of statutory and constitutional grounds. Most important of these contentions, and the only one passed on by the court below, is the claim that the amendment is invalid because it was not promulgated in accordance with the procedures mandated by IEEPA.
The Court of Appeals gave three reasons for rejecting the Government's argument based, in turn, on the plain language, the legislative history, and the underlying purpose of the 1977 amendment to TWEA.
Finally, the Court of Appeals concluded that the purpose behind the grandfather clause was solely to preserve current restrictions as bargaining chips in negotiations with the affected countries. To require the President to announce publicly a new declaration of emergency in order to preserve existing restrictions on transactions with those countries might have undesirable ramifications. On the other hand, simply to abandon the restrictions without any quid pro quo could be equally undesirable. Thus, the grandfather clause allowed current restrictions to remain in place. But, the court concluded, it would go beyond the purposes of the clause to permit the President to augment his bargaining powers by adding new restrictions. Id., at 799-800.
We find the reasoning of the Court of Appeals ultimately unconvincing on all three counts. The language of the grandfather clause, read in conjunction with § 5(b) of TWEA, supports the Government's contention that, in the relevant sense, the "authority" to regulate all property transactions with Cuba, including travel-related transactions, was being "exercised" on July 1, 1977 and was, therefore, preserved. And neither the legislative history nor the apparent purpose of the 1977 Act sufficiently supports the contrary contention that what Congress actually intended, despite the statutory language, was to freeze existing restrictions, so that any adjustment of pending embargoes would require the declaration of a new "national emergency" under the procedures of IEEPA.
The grandfather clause in Public Law 95-223 refers to the "authorities conferred upon the President by section 5(b) of the Trading with the Enemy Act." Among those authorities is the authority to "regulate . . . any . . . transactions involving. . . any property in which any foreign country or any national thereof has had any interest." 50 U. S. C. App. § 5(b). Section 5(b) draws no distinction between the President's authority over travel-related transactions and his authority over other property transactions. For purposes of TWEA, it is clear that the authority to regulate travel-related transactions is merely part of the President's general authority to regulate property transactions.
It is also clear that the President's authority to regulate property transactions with Cuba and Cubans was being exercised on July 1, 1977. Regulation 201(b), which was in force on July 1, 1977, and continues in full force and effect today, explicitly prohibits, except as specifically authorized by the Secretary of the Treasury, all transactions involving property
On July 1, 1977, most travel-related transactions with Cuba and Cuban nationals were permitted by a general license. But that does not change the fact that the President was exercising his § 5(b) authorities with respect to those transactions. Section 5(b) specifically states that the authorities granted therein may be exercised "by means of instructions, licenses, or otherwise." On July 1, 1977, the President was exercising his authority over travel-related transactions with Cuba and Cubans by means of a general license which exempted them from the categorical prohibition of Regulation 201(b).
At that time, travel-related transactions involving Cuban property were still subject to the recordkeeping requirements of 31 CFR § 515.601 (1977). Other restrictions were also imposed. See n. 6, supra. And the general license was expressly subject to revocation, amendment, or modification "at any time." § 515.805. Thus, travel-related transactions "were specifically made subordinate to further actions which the President might take . . . ." Dames & Moore v. Regan, 453 U.S. 654, 673 (1981). And when the general license was amended in 1982, so that most travel-related transactions were no longer specifically authorized, such transactions automatically became subject, once again, to the prohibition of Regulation 201(b).
A contrary, more constricted reading of the grandfather clause does undue violence to the words chosen by Congress. The clause refers to "authorities" being exercised on July 1, 1977, not to "prohibitions" actually in place on that date. And it provides that those authorities "may continue to be
The Court of Appeals felt that its more constricted reading of the grandfather clause comported with the legislative history surrounding the enactment of Public Law 95-223. We would certainly agree that the following colloquy between Representative Cavanaugh and Assistant Secretary of the Treasury Bergsten, the administration's spokesman for the bill, supports a narrow reading of the grandfather clause:
We also agree that a narrow construction at least appears to be supported by Representative Bingham's objections to, and the subsequent elimination of, language in a Subcommittee staff draft which would have expressly grandfathered presently unused authorities of the President under § 5(b) of TWEA so long as they were used to deal with a "set of
But even if these were the only available indications of congressional intent apart from the language which Congress enacted, we would have grave doubts that they were sufficient to overcome what seems to us to be the clear, generic meaning of the word "authorities." Oral testimony of witnesses and individual Congressmen, unless very precisely directed to the intended meaning of particular words in a statute, can seldom be expected to be as precise as the enacted language itself. To permit what we regard as clear statutory language to be materially altered by such colloquies, which often take place before the bill has achieved its final form, would open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President.
Finally, we reject the Court of Appeals' view that the purpose of the grandfather clause was merely to preserve existing bargaining chips in negotiations with affected countries. There are some statements in the Subcommittee hearings to the effect that existing embargoes should not be abandoned without exacting some sort of negotiated quid pro quo.
The House Report is explicit on this point.
Hewing to this noncontroversial approach, Representative Bingham, the Chairman of the responsible House Subcommittee, assured the Members of the House that "this legislation specifically grandfathers the embargoes against Vietnam, Cambodia, Laos, Cuba, and other existing embargoes, so that they are not affected in any way by this legislation." 123 Cong. Rec. 38166 (1977) (emphasis added). Our reading of the grandfather clause is consistent with these clear statements of its purpose and effect. Eliminating the President's authority to modify existing licenses in response to heightened tensions with Cuba would have sparked just the sort of controversy the grandfather clause was designed to avoid. See Emergency Controls Hearings, at 207 (summary of staff draft); id., at 210 (remarks of Rep. Bingham).
Respondents finally urge that if we do find that the President is authorized by Congress to enforce the regulations here in question, their enforcement violates respondents' right to travel guaranteed by the Due Process Clause of the Fifth Amendment. Respondents rely on a number of our prior decisions which recognized such a right, beginning in 1958 with Kent v. Dulles, 357 U.S. 116. Respondents' counsel undoubtedly speaks with some authority as to these cases, since he represented the would-be travelers in most of them.
In Kent, the Court held that Congress had not authorized the Secretary of State to inquire of passport applicants as to affiliation with the Communist Party. The Court noted that the right to travel "is a part of the `liberty' of which the citizen cannot be deprived without due process of law," id., at 125, and stated that it would "construe narrowly all delegated
Both Kent and Aptheker, however, were qualified the following Term in Zemel v. Rusk, 381 U.S. 1 (1965). In that case, the Court sustained against constitutional attack a refusal by the Secretary of State to validate the passports of United States citizens for travel to Cuba. The Secretary of State in Zemel, as here, made no effort selectively to deny passports on the basis of political belief or affiliation, but simply imposed a general ban on travel to Cuba following the break in diplomatic and consular relations with that country in 1961. The Court in Zemel distinguished Kent on grounds equally applicable to Aptheker.
The Court went on to note that, although the ban in question effectively prevented travel to Cuba, and thus diminished the right to gather information about foreign countries, no First Amendment rights of the sort that controlled in Kent and Aptheker were implicated by the across-the-board restriction
We see no reason to differentiate between the travel restrictions imposed by the President in the present case and the passport restrictions imposed by the Secretary of State in Zemel. Both have the practical effect of preventing travel to Cuba by most American citizens, and both are justified by weighty concerns of foreign policy.
Respondents apparently feel that only a Cuban missile crisis in the offing will make area restrictions on international travel constitutional. They argue that there is no "emergency" at the present time and that the relations between Cuba and the United States are subject to "only the `normal' tensions inherent in contemporary international affairs." Brief for Respondents 55. The holding in Zemel, however, was not tied to the Court's independent foreign policy analysis. Matters relating "to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952). Our holding in Zemel was merely an example of this classical deference to the political branches in matters of foreign policy.
In the opinion of the State Department, Cuba, with the political, economic, and military backing of the Soviet Union, has provided widespread support for armed violence and terrorism in the Western Hemisphere. Cuba also maintains close to 40,000 troops in various countries in Africa and the Middle East in support of objectives inimical to United States foreign policy interests. See Frechette Declaration ¶ 4, App. 107. Given the traditional deference to executive judgment "[i]n this vast external realm," United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936), we think there is an adequate basis under the Due Process Clause of the Fifth Amendment to sustain the President's decision to curtail the flow of hard currency to Cuba — currency that could then be used in support of Cuban adventurism — by restricting travel. Zemel v. Rusk, supra, at 14-15; Haig v. Agee, 453 U.S. 280, 306-307 (1981).
In sum, we conclude, based on an analysis of the language of the grandfather clause as well as its purpose and legislative history, that the grandfathered authorities of § 5(b) of TWEA provide an adequate statutory basis for the 1982 amendment restricting the scope of permissible travel-related transactions with Cuba and Cuban nationals. We also conclude that such restrictions do not violate the freedom to travel protected by the Due Process Clause of the Fifth Amendment.
The judgment of the Court of Appeals is
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE POWELL join, dissenting.
All parties concede that the 1982 restrictions on travel-related expenditures in Cuba, 47 Fed. Reg. 17030 (1982), were not promulgated in conformity with the procedural requirements of the International Emergency Economic Powers Act of 1977, Pub. L. 95-223, Title II, 91 Stat. 1626, 50 U. S. C. §§ 1701-1706 (IEEPA). Thus, those restrictions are invalid unless they were authorized by § 101(b) of Pub. L. 95-223, 91 Stat. 1625, the grandfather clause of the IEEPA. Because I do not agree that the grandfather clause encompasses the exercise of Presidential power at issue here, I would affirm the judgment of the United States Court of Appeals for the First Circuit.
Congress promulgated Public Law 95-223 to address problems unforeseen by the drafters of the Trading With the Enemy Act of 1917, 40 Stat. 411, as amended, 50 U. S. C. App. § 1 et seq. (TWEA). The TWEA was one of several statutes that reflected Congress' conclusion that the President should have increased authority in times of war or national emergency in order to respond to such crisis situations with the coordinated alacrity they require. Accordingly,
Although TWEA provided clear procedures for enhancing the authority of a President when an emergency arose, the Act contained no similar provision to reduce the President's authority to its normal scope when the emergency subsided. Once the President had declared a state of national emergency, the emergency officially continued to exist until the President declared that it had ended. Until such a declaration of termination was made, the President enjoyed the broad authority that the TWEA conferred upon him to address the original emergency. The historical record shows that once a President had declared the existence of a national emergency, he was slow to terminate it even after the circumstances or tensions that had led to the declaration could no longer be said to pose a threat of emergency proportion to the Nation. See generally Emergency Controls on International Economic Transactions: Hearings before the Subcommittee on International Economic Policy and Trade of the House Committee on International Relations, 95th Cong., 1st Sess., 16-19 (1977) (Subcommittee Hearings) (statement of Prof. Andreas F. Lowenfeld); id., at 27-31 (statement of Prof. Harold G. Maier).
Because of this pattern of behavior, TWEA emergency authority operated as a one-way ratchet to enhance greatly the President's discretionary authority over foreign policy. At the time that Congress began to consider amendments to the TWEA, the United States technically faced four declared states of "emergency." Among the four were President Franklin D. Roosevelt's 1933 Bank Holiday Declaration, Presidential Proclamation No. 2040, 48 Stat. 1691; President Nixon's 1970 declaration concerning a Post Office strike, Presidential Proclamation No. 3972, 3 CFR 473 (1966-1970 Comp.); and President Nixon's 1971 declaration concerning the country's balance-of-payments problems, Presidential Proclamation No. 4074, 3 CFR 60 (1971-1975 Comp.). The
There was widespread feeling that this broad grant of emergency powers conflicted with the intent of the TWEA, which sought to empower a President to respond to situations that presented an imminent threat requiring immediate response.
The Members of Congress who heard the testimony found it convincing. See, e. g., H. R. Rep. No. 95-459, p. 7 (1977) (§ 5(b) "has become essentially an unlimited grant of authority"); Revision of Trading with the Enemy Act, Markup before the House Committee on International Relations, 95th Cong., 1st Sess., 8 (1977) (House Markup) (statement of Rep. Bingham) ("Section 5(b) has become a grab-bag of authorities which Presidents have been able to use to do virtually anything for which they could find no specific authority"). House Subcommittee Members also believed that some of the actions taken by the Executive Branch under the TWEA had, at most, a shaky foundation in actual emergency situations. In an exchange with Assistant Secretary of State Julius L. Katz, Subcommittee Chairman Bingham voiced his incredulity concerning the bases for certain then-effective regulations promulgated under § 5(b):
It is clear that Congress intended to curtail the discretionary authority over foreign affairs that the President had accumulated because of past "emergencies" that no longer fit Congress' conception of that term. To accomplish this goal, Congress amended the TWEA and enacted the IEEPA. Congress left intact the powers that the TWEA had conferred upon the President during time of war, but removed from the TWEA the authority for Presidential action in a national emergency. As a substitute for those powers, Congress promulgated the IEEPA to confer power upon the President in national-emergency situations. The substantive reach of the President's power under the IEEPA is
The prospective nature of the IEEPA left Congress with the dilemma of how to deal with existing regulations that had been promulgated under § 5(b) and obviously had not been issued in accordance with the new procedures set forth in the IEEPA. There were those on the House Subcommittee considering the amendments to the TWEA who thought that there should be no grandfathering and that the existing regulations should be allowed to expire. See, e. g., Subcommittee Hearings, at 167, 168-169, 198 (remarks of Rep. Cavanaugh); id., at 210 (remarks of Rep. Findley); id., at 119 (colloquy between Rep. Bingham and Assistant Treasury Secretary Bergsten). Such an approach would have required the President to evaluate each situation in which regulations were in effect and to determine whether the need for reinstitution of the regulations justified a new declaration of national emergency. Others believed that Congress should conduct such a review and determine which restrictions were still justified by current exigencies. See H. R. Rep. No. 95-459, at 9-10. In response to two related concerns, however, the view that there was a need for some sort of grandfathering finally carried the day.
The first argument supporting a grandfather clause was the desire to preserve the administration's bargaining position in dealing with countries that were the subject of existing embargoes and asset freezes. Testimony before the
The second argument in favor of some form of a grandfather clause was related to the first. Several of the witnesses who testified at the hearings on the bill felt that the President should not be faced with the need to declare a new national emergency in order to continue existing restrictions. Such a declaration would have foreign policy reverberations of its own, and might inject new tension into a sensitive situation in which tensions were on the decline. See, e. g., Subcommittee Hearings, at 19 (statement of Prof. Lowenfeld); id., at 191-192 (remarks of Mr. Santos, Treasury Department attorney adviser). It would have been incongruous, in other words, for Congress to force the President to declare new emergencies in nonemergency situations simply to avoid having to end restrictions that, for negotiating reasons, the President had concluded should not be ended unilaterally.
The proponents of grandfathering voiced their desire that the grandfather clause be tailored narrowly to fit these concerns. In its early form before the Subcommittee, the clause contained two subparts, §§ 101(b)(1) and (2), which read:
In response to a question about the meaning of § 101(b)(2), Subcommittee Staff Director R. Roger Majak explained the purposes of the provision:
Representative Bingham voiced his opposition to such a broad grandfather clause.
Section 101(b)(2) was removed from the draft bill presented to the Committee.
When the full House Committee viewed § 101(b) after § 101(b)(2) had been deleted, Representative Cavanaugh sought to ascertain that the clause was drawn as narrowly as possible to include only those regulations currently in effect:
In explaining the effect of the grandfather clause to the full House Committee, Representative Bingham stressed that
It is important to emphasize that the decision to grandfather the specific uses of authorities being exercised at a certain date did not reflect congressional acknowledgment that those uses of authorities were in fact addressed to true emergency situations. To the contrary, Congress openly expressed its view that many of the grandfathered restrictions had no real basis in an emergency situation. H. R. Rep. No. 95-459, at 11 (few current uses could be justified as responding to existing emergency situations). Responding to this sentiment, Congress expressly provided annual procedures governing the continuation of grandfathered authorities that are different from the procedures that govern the continued exercise of any new restrictions entered pursuant to a new state of emergency. With respect to future exercises of emergency power, the President's decision to continue in effect the proclamation of national emergency, and the regulations promulgated thereunder, are subject to semiannual review by Congress. See 50 U. S. C. §§ 1622(b), 1641(c). With respect to grandfathered authorities, the grandfather clause requires only that the President find continued exercise of the authority to be in the national interest. § 101(b), 50 U. S. C. App. § 5; Subcommittee Hearings, at 208. In this way, the Subcommittee avoided perpetuating the "phony character" of the national emergencies under which current exercises of § 5(b) power were promulgated. Id., at 210. See also, id., at 193 (statement by Mr. Santos, Treasury Department attorney adviser) (administration would have difficulty making good-faith declaration of current national emergency with respect to Cuba); House Markup, at 3 (remarks of Rep. Bingham).
In sum, the grandfather provision of the IEEPA was designed narrowly to respond to a particularized set of
The Court rejects this narrow interpretation in favor of one that loses all sight of the general legislative purpose of the IEEPA and the clear legislative intent behind the grandfather clause. To achieve its labored result, the Court invokes a series of platitudes on statutory interpretation, but ignores their application to this case. Ironically, the very pieces of legislative history that the Court cites to justify its result clearly support the contrary view.
Recognizing the clear import of the legislative history, the Court begins by discovering absolute clarity in the "plain language" of the statute. The Court focuses on the fact that Congress used the term "authorities" in the grandfather clause instead of either the word "restrictions" or "prohibitions." Finding what, in its view, is a vast difference between the meaning of the first term and that of the latter two, the Court concludes that if Congress had meant "restrictions" it would have said so explicitly. Ante, at 236.
But the Court's confident claim that the statutory language is without ambiguity is pure ipse dixit. The Court concedes that throughout the legislative history Congress referred to what it wanted to grandfather as "restrictions," "controls," "specific uses," "prohibitions," "existing uses," and "authorities." It is true that Congress used the word "authorities" when it drafted the statute, but there is nothing to indicate
There is nothing in the language of the statute to suggest, however, that Congress intended the grandfather clause to provide a President with the authority to increase the restrictions applicable to a particular country without following the IEEPA procedures. As the legislative history makes clear, when Congress grandfathered all "authorities . . . being exercised," it sought to preserve the uses of § 5(b) authorities that the President had employed in the past to address a particular situation — but no more. As Representative Bingham, a principal drafter of the bill, stated: "if the President has not up to now used some authority that he has under section 5(b) in connection with those cases where 5(b) has been applied, I don't know why it should be necessary to give him authority to expand what has already been done." Subcommittee Hearings, at 167.
In its effort to downplay the clear legislative history of the grandfather clause, the Court relies on platitudes about the hazards of relying on such legislative history. The Court correctly states:
I have no disagreement with these generalities; they simply have no relevance to this case. The "colloquies" referred to involve the drafters of the Act, are directed at the precise language of the grandfather clause, and either were addressed to the bill in its final form, or aimed at getting changes in the bill to deal with precisely the problem at issue in this case.
Failing to heed its own advice, the Court then would rely on the legislative history of the Act to discern a congressional purpose consistent with its interpretation of the statute. The Court concludes that the purpose of the grandfather clause was to prevent the proposed bill from becoming controversial. Once again, I have no disagreement with this general interpretation. But the Court misapprehends the aspects of the statute that Congress feared would be divisive. Congress concluded that it would be controversial for it to examine existing controls to determine whether they were justified by the exigencies of particular situations. H. R. Rep. No. 95-459, at 9-10. And Congress also felt it undesirable to force the President either to declare new national emergencies where none existed or to end restrictions without obtaining a quid pro quo. Accordingly, Congress decided that it would grandfather what the President already had done with respect to particular situations. The "controversy" that Congress hoped the grandfather clause would
The Court displays its utter confusion about this matter through its reliance on a quotation from the House Report that the Court believes supports its broad interpretation of the grandfather clause. In fact, the passage provides strong support for exactly the interpretation that the Court rejects. The passage reads:
The Court's decision to quote this language, ante, at 239-240, is remarkable. By its terms, the quotation makes clear that the controversy Congress sought to avoid was that which would arise if Congress passed judgment on "existing uses of international economic transaction controls, and thereby the policies they reflect." Accordingly, Congress grandfathered them. It is also clear that the "existing uses" and "economic controls" and "policies" that Congress decided
Thus, it is equally remarkable for the Court to suggest that the purpose of the grandfather clause is to protect the President's authority to "respon[d] to heightened tensions with Cuba." Ante, at 240. If one thing is apparent from the legislative history of the Act, it is that Congress was not persuaded that the realities of the situation in Cuba constituted an emergency. See supra, at 247-249, 254-255. It is therefore somewhat incongruous to conclude that Congress intended to give the President greater flexibility to respond to developments in relations with Cuba than to events in other trouble spots around the world, such as Afghanistan, the Middle East, and Poland. With respect to future developments in such places, the IEEPA makes clear that the President cannot use his emergency powers to respond to "heightened tensions" unless the President has decided that a state of emergency exists, and has so declared. Nothing in the Court's opinion explains why Congress intended such unevenness in the President's authority to respond to future events; and it certainly is not self-evident why a less anomalous approach would have been "controversial."
The incongruity in the Court's analysis arises because the President's position in 1977 with respect to all trade with China was exactly like his position with respect to travel-related expenditures in Cuba. If the logic of the Court's opinion in this case is correct, Congress intended the grandfather clause in the IEEPA to preserve the President's authority to reinstitute a complete trade embargo with China simply by eliminating the general license that was in effect at the time that the IEEPA was passed.
Because the restrictions on travel-related expenditures in Cuba were not promulgated in conformity with the IEEPA and because there is no coherent reason to believe that Congress intended to preserve the President's authority to institute such restrictions without complying with the IEEPA, I respectfully dissent.
JUSTICE POWELL, dissenting.
As the petitioners argue, the judgment of the Court may well be in the best interest of the United States. The regulations upheld today limit Cuba's ability to acquire hard currency, currency that the Executive has found might be used to support violence and terrorism. Our role is limited, however, to ascertaining and sustaining the intent of Congress. It is the responsibility of the President and Congress to determine the course of the Nation's foreign affairs. In this case, the legislative history canvassed by JUSTICE BLACKMUN'S dissenting opinion unmistakably demonstrates that Congress intended to bar the President from expanding the exercise of emergency authority under § 5(b). Contrary to the Court's view, the meaning of the word "authorities" in the grandfather clause is not "clear," see ante, at 237, nor in my view is it contrary to the fair import of this history.
"No assistance shall be furnished under this chapter to the present government of Cuba. As an additional means of implementing and carrying into effect the policy of the preceding sentence, the President is authorized to establish and maintain a total embargo upon all trade between the United States and Cuba." 22 U. S. C. § 2370(a).
The Government has chosen not to rely on § 620(a) of the Foreign Assistance Act as statutory authority for the 1982 limitations on permissible travel-related economic transactions, apparently for two reasons. See Brief for Petitioners 4, n. 8. First, the scope of § 5(b) of TWEA, see n. 2, infra, appears to be broader than that of § 620(a) insofar as it reaches financial transactions unrelated to trade. Second, the Foreign Assistance Act does not provide criminal penalties for violations of the regulations promulgated under it. TWEA does so provide. See 50 U. S. C. App. § 16.
"(1) During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise —
"(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities, and
"(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest . . . ." 50 U. S. C. App. § 5(b) (1958 ed.).
TWEA was first passed in 1917, six months after the United States entered World War I. See Act of Oct. 6, 1917, ch. 106, 40 Stat. 411. As originally enacted, TWEA dealt only with the President's use of economic powers in times of war. The Act was expanded to deal with peacetime national emergencies in 1933. Act of Mar. 9, 1933, ch. 1, 48 Stat. 1. The President has delegated his authority under TWEA to the Secretary of the Treasury, Exec. Order No. 9193, 3 CFR 1174, 1175 (1942), who in turn has delegated that authority to the Office of Foreign Assets Control, Treasury Department Order No. 128 (Rev. 1, Oct. 15, 1962).
In the alternative, see Brief for Respondents 10-20, respondents argue that a 1978 amendment to the Passport Act, 22 U. S. C. § 211a, eliminated whatever authority the President once had to regulate travel-related transactions under TWEA. See Pub. L. 95-426, § 124, 92 Stat. 971. But the 1978 amendment to the Passport Act is directed solely to the authority of the Secretary of State to impose area restrictions on the use of United States passports. The amendment has nothing to do with, and makes no mention of, the President's authority to regulate transactions under TWEA. Since repeals by implication are not favored, TVA v. Hill, 437 U.S. 153, 189-190 (1978); Morton v. Mancari, 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.
On the next page of its opinion, the court states that "[a]lthough the Treasury Department regulated travel to Cuba by means of regulations of the sort here at issue from 1963 to early 1977, on March 29, 1977, the Department repealed those travel restrictions . . . ." Id., at 796. Again, there were no separate "travel restrictions," either to be repealed in 1977 or reimposed in 1982. The source of all restrictions on property transactions is Regulation 201(b), which has been in effect continuously since 1963. Properly understood, the structure of the Cuban embargo undercuts the argument that restrictions on travel purchases and restrictions on commodities purchases are "very different" exercises of authority.
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.
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").
Further, it is nonsensical to assume that Mr. Santos meant, or that Representative Bingham could have understood him to mean, that all § 5(b) powers were being exercised with respect to the countries that were currently the subject of regulations promulgated under § 5(b). For example, both participants in the conversation were well aware that in addition to the embargoes of North Korea, Vietnam, Cambodia, and Cuba, there were in effect Transaction Control Regulations, 31 CFR § 505.10 et seq. (1977), which prohibited any "person within the United States" from purchasing from any foreign country strategic commodities destined for a Communist country, and Foreign Funds Control Regulations, 31 CFR § 520.01 et seq. (1977), which blocked certain assets of East Germany, Czechoslovakia, Latvia, Lithuania, and Estonia that had been blocked during World War II. No party to this litigation and nothing in the legislative history suggest that there is any support for the view that all powers under § 5(b) were being exercised with respect to all these countries. Mr. Santos' statement is ambiguous and confusing, and I do not think it wise to allow this single, isolated exchange to cast a shadow of doubt over the clear import of the deletion of § 101(b)(2).
"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).