LOCATION: Hishon & King Atlanta Office
DOCKET NO.: 83-436
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the First Circuit
CITATION: 468 US 222 (1984)
ARGUED: Apr 24, 1984
DECIDED: Jun 28, 1984
Leonard B. Boudin - on behalf of Respondents
Paul M. Bator - on behalf of Petitioners
Facts of the case
Media for Regan v. Wald
Audio Transcription for Oral Argument - April 24, 1984 in Regan v. Wald
Warren E. Burger:
We will hear arguments first this morning in Regan against Wald.
Mr. Bator, you may proceed whenever you're ready.
Paul M. Bator:
Thank you, Mr. Chief Justice, and may it please the Court:
This case raises questions about the President's authority in connection with national emergency economic embargoes, that is, in connection with programs of comprehensive control on financial and property transactions that apply to a few countries with which our foreign relations are in a state of very special and acute difficulty.
This case involves Cuba.
The embargo that is involved here is very much like the Iranian assets control program that was before the Court in Dames & Moore, and the case involves the very statute considered in Dames & Moore, the Trading With the Enemy Act of 1917 and the International Emergency Economic Powers Act, which is known as IEPPA> ["].
Specifically, this case presents the question of the validity of regulations issued in 1982 by the Treasury which prohibit certain financial transactions incident to travel to Cuba.
In effect, these regulations provide that Americans traveling to Cuba may spend money for Cuban goods and services only if the travel involves Government business or involves journalism or involves scholarly research or a visit to close relatives, or if it is authorized by a specific license in connection with humanitarian activities or in connection with sporting or artistic exhibitions.
The regulations do not prohibit travel as such.
You are free to go to Cuba if, for instance, you have friends or relatives who invite you or will fund you, or if the Cuban Government or a Cuban organization will fund your visit, so that hard currency is not spent in Cuba.
But you can't spend American dollars in Cuba unless you fall within one of the licensed categories.
The 1982 regulations here modified a general license which had been issued by President Carter in March of 1977... that's an important date... which gave permission to Americans to spend American dollars when they went to Cuba.
Now, that general license itself was, however, subject to important qualifications on the flow of American travel dollars to Cuba.
For instance, American credit card companies were not allowed to make credit card arrangements in Cuba, and that made it harder for Americans to travel on credit.
Perhaps more significant, travelers who wanted to go to Cuba under that general license pretty much had to arrange for charter travel, because financial transactions in connection with any scheduled voyages to Cuba were not permitted by that license.
Both the '77 license and the '82 modifications were part of the overall Cuban assets control regulations, regulations that continuously since 1963 have subjected all economic transactions between Americans and Cuba or Cubans to a comprehensive system of licensure.
Section 201(b) of the Cuban assets control regulations has since '63 provided that no economic transaction in which Cuba has any interest may go forward without a license from the Treasury, so that by the terms of regulation 201(b) it has been unlawful since 1963 to spend American dollars in connection with travel to Cuba unless you had a Treasury license.
Now, from '63 to '77 these licenses were issued on an individual basis to particular individuals.
Then in '77 came the general license, which was in turn modified in 1982.
The legal issue before the Court is whether there is a valid legal authority for the 1982 modifications.
The Cuban assets control regulations were themselves issued under Section 5(b) of the TWEA, Trading With the Enemy Act, which broadly authorizes the President during war or during peacetime declared national emergencies to use rules or regulations or licenses to regulate or prohibit any transaction involving any property in which Cuba... in which a foreign country or a foreign national has any interest.
Now, as explained in our briefs, the question in the case arises because the TWEA was amended by Congress in December of 1977 to apply generally only during wartime.
Peacetime economic embargoes in connection with future national emergencies were switched by Congress onto a different statutory track under a new statute, IEEPA.
IEEPA gave the President pretty much the same substantive authority as he had under the TWEA.
In fact, IEEPA replicates the Section 5(b) TWEA language relevant to this case.
But IEEPA lays down new procedures and new predicates for the exercise of those peacetime powers.
Mr. Bator, what other countries were there at the time of the grandfather clause enactment which our Government had a broad prohibition on unlicensed property transfers?
Paul M. Bator:
The major standing embargoes in '77 were Cuba, North Korea, Vietnam and Cambodia.
How about China?
Paul M. Bator:
There was... the China situation is complicated.