In 2008, President Bush performed a legal maneuver that essentially updated the “operating system” for North Korea sanctions from an old version (TWEA) to a modern version (IEEPA). While this was technically possible for North Korea, it is legally impossible for a President to do the same for Cuba without Congress.

The reason lies in the difference between Executive Orders (rules the President makes) and Statutory Law (rules Congress makes).

The Layperson Explanation: “The Golden Handcuffs”

Imagine sanctions are a fence built around a country.

• North Korea’s Fence (Pre-2008): The fence was built by President Truman in 1950 using his own authority. Because a President built it, a later President (Bush) had the power to tear it down or rebuild it using different materials (swapping TWEA for IEEPA) without asking permission.
• Cuba’s Fence: This fence was also originally built by a President (Kennedy). However, in 1996, Congress passed a law (the Helms-Burton Act) that effectively poured concrete over the fence posts. Congress declared that the President’s fence was now Federal Law.
• The Result: The President can no longer simply swap the legal authority or take down the fence. Congress holds the only key to unlock it. If the President tried to “terminate” the TWEA authority for Cuba, they would be violating the law passed in 1996 which mandates those specific restrictions remain in place until Cuba becomes a democracy.

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Comparison: Creation and Evolution of Sanctions

The two programs started similarly but diverged wildly in the 1990s.

1. North Korea: The “Executive” Model

• Origin (1950): Upon the outbreak of the Korean War, President Truman declared a national emergency and imposed sanctions using the Trading with the Enemy Act (TWEA).
• The “Grandfather” Clause (1977): In 1977, Congress passed a law (IEEPA) saying TWEA could only be used for wars, not peacetime emergencies. However, they allowed existing emergencies (like North Korea and Cuba) to continue under TWEA (“grandfathered in”).
• The 2008 Swap: To aid nuclear negotiations, President Bush wanted to remove North Korea from the list of TWEA countries. Because these sanctions were largely kept in place by Executive Order, he issued Proclamation 8271, terminating the TWEA emergency. He immediately issued Executive Order 13466 to place North Korea under IEEPA authorities instead. This kept sanctions in place but updated their legal basis to the modern standard.

2. Cuba: The “Statutory” Model

• Origin (1960s): President Kennedy imposed the embargo under the Foreign Assistance Act and TWEA. For decades, it operated just like the North Korea program—renewed annually by the President.
• The Codification (1996): In reaction to Cuba shooting down two American civilian planes (Brothers to the Rescue), Congress passed the Helms-Burton Act (LIBERTAD Act).
  • Section 102(h): This specific section “codified” the embargo. It stated that all regulations in effect on March 1, 1996, were now law.
• The Lock: This removed the President’s discretion. While Presidents (like Obama or Biden) can modify the rules (licensing travel or remittances), they cannot terminate the underlying authority (TWEA) or the embargo itself. The law requires a Presidential certification to Congress that a “transition government” is in power in Cuba before the sanctions can be lifted.

Summary of Differences

Feature	North Korea Sanctions (2008 Era)	Cuba Sanctions (Present Day)
Primary Authority	IEEPA (Executive discretion)	TWEA (Congressionally Mandated)
Can the President End it?	Yes. (Until 2016*)	No. Requires Congress.
Legal Basis	Executive Orders & Proclamations.	Helms-Burton Act (1996) (Statutory Law).
Renewal Process	President declares yearly “Emergency”.	President must renew TWEA authority annually or violate the statute.

*Note: Since 2016, Congress has passed stricter laws on North Korea (NKSPEA), effectively beginning to “codify” those sanctions as well, making them harder to lift today than they were in 2008.

Sources

• Bush’s 2008 Action: Proclamation 8271 (Termination of the Exercise of Authorities Under the Trading With the Enemy Act With Respect to North Korea) and Executive Order 13466.
• Cuba Codification: The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Pub. L. 104-114), specifically Title I, Section 102(h).
• TWEA vs. IEEPA History: Congressional Research Service Report R45618, “The International Emergency Economic Powers Act: Origins, Evolution, and Use.”
• General Comparison: Haney, P. J., & Vanderbush, W. (1999). “The Role of Ethnic Interest Groups in U.S. Foreign Policy: The Case of the Cuban American National Foundation.” International Studies Quarterly.