Sanctions and the Emergency Constitution

Abstract

The Trading with the Enemy Act of 1917—or the “TWEA”—is the precursor to the modern statutory sanctions framework of the United States. Though significantly amended since its passage—and even replaced in part by a successor statute, the International Emergency Economic Powers Act of 1977—the TWEA’s origins are important both to an understanding of modern sanctions law and to an understanding of the development of American governance. In enacting the TWEA, Congress sought to codify aspects of preexisting prize and trading-with-the-enemy cases. This Article explores the cases that formed the backdrop against which Congress enacted the TWEA, as well as relevant aspects of the TWEA’s drafting history. It examines the cases that emerged in the aftermath of the TWEA’s passage, especially those that confronted Congress’s later decision to make TWEA applicable in times of “national emergency,” as well as in times of “war.”