Vanderbilt Journal of Transnational Law

First Page



On December 28, 1977, President Carter signed into law Public Law 95-223, an act "[w]ith respect to the powers of the President in time of war or national emergency." The primary purpose of the Act is to revise the Trading With the Enemy Act of 1917 (TWEA), and thus to restrict presidential authority to respond to emergencies related to international economic transactions. The Act is the latest product of a continuing congressional effort to readjust the balance of power between the two branches of government. The War Powers Resolution and the National Emergencies Act were earlier pieces of legislation intended to have the same effect: to retrieve congressional power which had been relinquished to the President. The question remains, however, whether Congress can reverse a trend toward greater presidential initiative, a trend which until recently it supported.

The Trading With the Enemy Act is a prime example of how presidential initiative has been nurtured and expanded by presidential action and congressional acquiescence. The Act was originally intended to provide the President with the authority to respond to international economic emergencies during time of war; it evolved into the source of authority for presidential responses in such diverse areas as consumer credit, postal strikes, and balance of payments deficits. The purpose of this paper is to analyze the concept, development, and scope of the powers delegated to the President under section 5(b) of the TWEA, and to determine what impact Public Law 95-223 will have on the use of these powers in future emergencies. This paper proposes that Congress has, indeed, "chosen other roles for itself," and as a result that the constitutional authority of the President has expanded implicitly to include the authority to respond unilaterally to an emergency relating to international economic transactions. The significance of Public Law 95-223 is reflected in the seemingly disparate reactions of the executive and legislative branches towards the Act: President Carter stated that Public Law 95-223 is "largely procedural;" Congress stated that it intended the legislation "to redefine the power of the President to regulate economic transactions in future times of war or national emergency." The evidence indicates, however, that while Congress may have "redefined" the power, it did not substantively change the power by that redefinition.