Since 1917 the President had the power to seize or block financial transactions of those considered to be our enemy

The Tucker Act, 28 U.S.C. S 1491, grants the U.S. Claims Court ” `jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.’ ” Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment.

The Tucker Act, 28 U.S.C. S 1491, provides in relevant part: The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tor

Through the Tucker Act (March 3, 1887, ch. 359, 24 Stat. 505, 28 U.S.C. § 1491), the United States government has waived its sovereign immunity with respect to certain lawsuits.

The Tucker Act may be divided into the “Big” Tucker Act which applies to claims above $10,000 and gives exclusive jurisdiction to the United States Court of Federal Claims and the “Little” Tucker Act 28 U.S.C. § 1346(a)(2) which gives concurrent jurisdiction to the Court of Federal Claims and the District Courts for claims below $10,000.
Permitted lawsuits

Suits may arise out of express or implied contracts to which the government (or one of its agencies) was a party. Damages may be liquidated or unliquidated. Suits may be brought for Constitutional claims, particularly taking of property by the government to be compensated under the Fifth Amendment. Parties may bring suit for a refund of taxes paid. Explicitly excluded are suits in which a claim is based on a tort by the government.

Not all government contracts are subject to the Tucker Act. For example, the Supreme Court, in Burr v. FHA, 309 U.S. 242 (1940), has stated that the Congress may organize “sue and be sued” agencies; such agencies may be sued in any court of otherwise competent jurisdiction as if it were a private litigant, as long as the agency is to pay out the judgment from its own budget, not from the U.S. Treasury. Whether the agency or the Treasury is to pay depends on the congressional intent.

The Tucker Act in itself does not create any substantive rights, but must be paired with a “money mandating” statute that allows for the payment of money. United States v. Testan, 424 U.S. 392 (1976).
[edit] Jurisdiction

The Tucker Act granted jurisdiction to a Court of Claims over government contract money claims both for breach, and for relief under the contracts in the form of equitable adjustment.
[edit] Wunderlich act

In United States v. Wunderlich, (1951), the Supreme Court held that procurement agencies could preclude judicial review of their decisions relating to contract disputes (except as to fraud issues) by exacting the contractor’s acquiescence in contract clauses making agency board’s decisions final both as to fact and law. This result was not deemed desirable by Congress, which enacted the Wunderlich Act to overturn that decision. Under the terms of this Act, board decisions could be accorded no finality on questions of law, but findings could be made final as to fact issues so far as supported by substantial evidence and not arbitrary or capricious, etc., and thus the statute restored a significant role to the Court of Claims.

Under the Wunderlich Act, the Court of Claims at first received testimony additional to that in the board record, determining whether board findings were supported by substantial evidence by weighing the findings against both record testimony and that newly taken. In United States v. Carlo Bianchi & Co., (1963), the Supreme Court construed the Wunderlich Act to restrict the Court of Claims to a purely appellate function in disputes clause cases. The court could remand to the board for further testimony, if needed, but could not take any itself, nor make any fact findings.
[edit] Early court of claims

The Court of Claims at that period, besides the Presidentially appointed Article III judges, included several persons called “commissioners” in the rules; later they were called “trial judges” and, collectively, the court’s “trial division.” The Bianchi decision appeared to eliminate any function for these commissioners to perform as to most contract disputes clause cases, for they were primarily takers of testimony and fact finders. However, the judges, having found the commissioners’ services of value, were reluctant to dispense with them, and a way to utilize them was found. The rules were amended for Wunderlich cases only, Ct. Cl. Rule 163(b), to provide that in such cases both parties should file motions for summary judgment, which motions were referred to commissioners for advisory or recommended opinions. That there was no fact issue requiring trial was a conclusion forced by Bianchi. The commissioners usually reviewed the records, received briefs, and heard oral arguments. In other than Wunderlich cases, cross-motions for summary judgment went before the Article III judges with no participation by the commissioners. In Wunderlich cases, the recommended opinion of the commissioner was, unless acquiesced in by both parties, considered on exceptions, oral arguments, and new briefs by the Article III judges.
[edit] History

The Act was named after Congressman John Randolph Tucker, of Virginia, who introduced it as a substitute for four other competing measures on government claims being considered by the House Judiciary Committee.
[edit] External links

Licata v. US postal service
Auction Company of America v. Federal Deposit Insurance Corporation
Tucker Act defined

September 11, 1995
(719) 481-9289
By Senator Charles R. Duke
Colorado District 9


In this column, several references have been made to the Emergency Banking and Relief Act of 1933. Those who read this column now know that Republicans in both California and Texas have taken steps to have this law repealed. Dr. Eugene Schroder of the American Agricultural Movement has alleged that this may be considered to be the genesis of the loss of our Constitutional rights.

Could it be there is one law responsible for all subsequent laws that trample our Constitutional rights? What was it about this law that many believe declared the American people to be enemies of the government? President Herbert Hoover (in the final days of his term) had refused to implement this law, which was based on a recommendation from the Federal Reserve. Why, then, did succeeding President Franklin Delano Roosevelt so warmly embrace this unconstitutional law? Why did FDR find it necessary to declare a national emergency, the effect of which was to suspend our Constitution, a suspension that exists to this day?

On October 6, 1917, the Congress had passed the Trading with the Enemy Act, dealing with how the government may control the activities of those considered to be enemies or allies of enemies of our government. Prior to 1933, Paragraph 5(b) of that Act read, “That the President may investigate, regulate or prohibit, under such rules as he may prescribe by means of foreign exchange, export or earmarkings of gold or silver coin or bullion or currency, transfers of credit in any form (other than credits relating to transactions to be executed wholly within the United States)…”

Since 1917, then, the President had the power to seize or block financial transactions of those considered to be our enemy. It is also very clear that, in 1917, the Congress wanted to exclude the American people from the oppression of such powers. The bill was, after all, supposed to define our government’s posture in dealing with our enemies or allies of our enemies.

The Emergency Banking and Relief Act, passed by Congress in special session on March 9, 1933, modifies paragraph 5(b) of the Trading with the Enemy Act just discussed. The modified paragraph reads, “Section 2. Subdivision (b) of section 5 of the Act of October 6, 1917 (40 Stat. L. 411), as amended, is hereby amended to read as follows: (b) During 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, investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange, transfers of credit between or payments by banking institutions as defined by the President, and export, hoarding, melting or earmarking of gold or silver coin or bullion or currency, by any person within the United States or any place subject to the jurisdiction thereof; and the President may require any person engaged in any transaction referred to in this subdivision to furnish under oath, complete production of any books of account, contracts, letters or other papers, in connection therewith in the custody or control of such person, either before or after such transaction is completed. Whoever willfully violates any of the provisions of the subdivision of any license, order, rule or regulation issued there under, shall, upon conviction, be fined not more than $10,000…”

This Act granted to the President broad sweeping investigative and prosecutorial powers against anyone, including the American people, found by the President to be an enemy. By removing the former “…transactions to be executed wholly within the United States…” the Congress was effectively putting the American people in the same category as our nation’s enemies, and gave the President essentially dictatorial powers.

This Act was, of course, unconstitutional. Historians tell us FDR stacked the U.S. Supreme Court with judges who would vow to continue his dictatorial powers. Those powers have been assumed by all Presidents since FDR, including the one presently in the White House. Small wonder, then, that none have adhered to a strict upholding of our Constitution, despite swearing an oath before God to do so. The dictatorship would end, the Federal Reserve’s stranglehold on our government would end, and our Constitutional Republic would be restored.

Later in 1933, Colorado’s Governor Ed Johnson radically transformed Colorado state government, creating all the departments to handle such “licensing” privilege assumed by the President. That is the year a licensing authority was assumed by state governments to regulate marriages, driving, hunting, automobiles, and trade. Preliminary research indicates many other states were being transformed, as well. The governors, you see, had agreed to this unconstitutional assault a few days before March 9, 1933.

There are many subsequent laws to further reinforce and verify Dr. Schroder’s contention. For those who wish to know more, you may contact him directly at P.O. Box 89, Campo, CO 81029, (719) 787-9958. He has, in this author’s opinion, accurately documented the beginning of the assault by your government on our Constitution. He has a number of books that will explain matters in any detail you would care to explore.

The solution to this exploitation of the American people is solely within the hands of the President. By simply issuing an Executive Order to end the state of emergency, our Constitution could be returned as the Supreme Law of the Land. So far in 1995, no Presidential candidate, except for Republican Charles Collins of Georgia, has had the courage to tell the truth about our nation’s real troubles. Only a public demand of the highest magnitude will force our Constitution to the front again.


Michael P. Malloy

Excerpt from the Trading with the Enemy Act

During the time of war [or during any other period of national emergency declared by the President,] the President may…

(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 by any person, or with respect to any property, subject to the jurisdiction of the United States.

The Trading with the Enemy Act (TWEA) (1917, ch. 106, 40 Stat. 411), which authorized the use of economic sanctions against foreign nations, citizens and nationals of foreign countries, or other persons aiding a foreign country, is the oldest such statute still in use by the United States. Most U.S. sanctions programs (like those against Iran, Libya, terrorists, and, before the 2003 war, Iraq) contain the same basic features. Although authorized by more recent statutes, these programs follow an approach to sanctions that has been in use under the TWEA from 1917 to 1975. The constitutionality of the TWEA, based on the foreign affairs powers of the United States, has been consistently recognized by the courts in such cases as Propper v. Clark (1949), Zittman v. McGrath (1951), and Freedom to Travel Campaign v. Newcomb (1996). Because it is important that the foreign affairs of the nation be conducted in a consistent and coherent manner, the courts have tended to give great respect to the president’s judgment and discretion. As a result, presidential actions taken under TWEA are rarely challenged successfully in litigation.

The key provision of the TWEA is section 5(b), which delegates to the president powers of economic warfare during a time of war or any other period of national emergency. Since 1977, when the International Emergency Economic Powers Act was enacted, the use of section 5(b) has been limited to periods of declared war. The exception is programs, such as the U.S. trade and financial embargo against Cuba, that were in existence before the 1977 change in section 5(b).

Congress enacted the TWEA in anticipation of U.S. involvement in World War I. The original act was intended to grant the president broad discretion and authority to regulate foreign currency transactions, transactions in gold or silver, and transfers of credit or evidences of indebtedness or property during a time of war “between the United States and any foreign country, whether enemy, ally of enemy or otherwise, or between residents of one or more foreign countries.” In creating the TWEA Congress sought to establish a set of restraints on international commerce, based on traditional common law and international legal principles that made commerce with declared enemy states and their nationals illegal. During the two world wars, the TWEA was used against states that were declared enemies of the United States. From 1933 to 1977, it was also used in situations not involving declared war (like the Korean conflict of 1950 to 1953) against states pursuing policies considered hostile to U.S. interests.

In March 1933 Congress amended the TWEA with virtually no debate to apply not only during periods of declared war but also “during any other period of national emergency declared by the President.” Over time, the active involvement of the United States in World War II and a series of international crises (primarily those resulting from the Cold War between the United States and the Soviet Union during the second half of the twentieth century) broadened the perceived purpose of the TWEA. The act came to be seen as an overall weapon of economic warfare, whether or not the United States was formally at war.

On April 10, 1940, twenty months before U.S. entry into World War II, President Franklin D. Roosevelt used section 5(b) to impose prohibitions on transfers of property in which Norway or Denmark or any citizen or national of those countries or any other person aiding those countries had any interest, unless the transactions were licensed by the Department of the Treasury. The president took this step in response to the invasion of the two countries by Nazi Germany. He hoped to prevent extortion of property subject to U.S. jurisdiction from its rightful owners in the occupied countries. The president repeatedly expanded the April 1940 Executive Order to cover other countries occupied by the Axis powers of Germany, Italy, and Japan, and eventually to cover the Axis powers themselves.

This broader purpose of “economic warfare” was carried over into the World War II sanctions program. It was also the basic purpose of the post-World War II sanctions programs enforced principally by the Treasury and Commerce Departments. For example, President Harry S Truman declared a state of national emergency on December 16, 1950, invoking the TWEA as the legal basis for imposing financial and trade restrictions against the People’s Republic of China and North Korea during the Korean conflict. Truman’s declaration was the legal basis for the postwar TWEA controls that remain in effect to this day.

A major legislative change occurred in 1977 with the return of the TWEA to its status as a legal authority to be used only in wartime. Congress was concerned that presidents had invoked “national emergency” powers too easily from 1933 through the 1970s. Despite these congressional concerns, however, the existing uses of the TWEA were continued until September 14, 1978. Under the amended statute, these uses could be extended for successive one-year periods by presidential determination and in fact have been routinely extended on a yearly basis. As a result, two “national emergency” sanctions programs continue to operate under the TWEA: (1) the Treasury Department’s Foreign Assets Control Regulations, originally established in 1950, which imposed full economic sanctions on North Korea and nationals thereof until June 2000 and continues to impose significant, though selective, sanctions against North Korea; and (2) the Treasury Department’s Cuban Assets Control Regulations, originally established in July 1963, which continues to impose full economic sanctions on Cuba and its nationals.

Despite the continuing use of the TWEA and other, later statutes as the legal basis for economic sanctions, legislators and other policy makers, as well as scholars, have frequently questioned whether economic sanctions are effective in achieving their various goals. For example, despite the Cuban sanctions, the Communist regime of Fidel Castro remains in power. On the other hand, unilateral U.S. sanctions imposed on Iran during the hostage crisis of 1979–1981 appear to have been significant in obtaining the release of U.S. embassy personnel held hostage in Teheran by the Islamic Republic of Iran. Likewise, in the early 1990s internationally supported U.S. sanctions against Iraq significantly contributed to ending Iraq’s occupation of Kuwait and containing the threat that Iraq posed to its other neighbors at that time.

Each sanctions episode tends to exhibit unique features, making it difficult to reach hard and fast conclusions about the effectiveness of sanctions as a general rule. As a result, the national and international debate over the effectiveness of sanctions will undoubtedly continue.


Carter, Barry E. International Economic Sanctions. Cambridge, U.K.: Cambridge University Press, 1988.

Hufbauer, Gary C., and Jeffrey J. Schott. Economic Sanctions Reconsidered. Washington, DC: Institute for International Economics, 1985.

Malloy, Michael P. United States Economic Sanctions: Theory and Practice. The Hague, Netherlands: Kluwer Law International, 2001.

U.S. Senate Special Committee on the Termination of the National Emergency. Emergency Powers Statutes: Provisions of Federal Law Now in Effect Delegating to the Executive Extraordinary Authority in Time of National Emergency. 93d Cong., 1st Sess. 1-6 (Comm. Print 1973).


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s