In September, Biden renewed U.S. sanctions on Cuba under the Trading with the Enemy Act (TWEA), a 1917 law designed to cut off trade with Germany during World War I.

Cuba is the only country in the world still subject to sanctions under the century-old law, which was originally intended to be used only in times of war.

After the triumph of the Cuban Revolution in 1959, President Eisenhower resisted invoking TWEA over concerns that explicitly designating Cuba as an “enemy” would constitute an act of economic warfare, souring relations with regional allies sympathetic to the changes taking place in Havana.

But bilateral relations quickly deteriorated due to a multitude of factors, leading President Kennedy to impose “an embargo on all trade with Cuba” in 1962 (60 years old this February). One year later, Kennedy invoked the Trading with the Enemy Act.

This was not technically a declaration of war since TWEA had been amended in 1933 to also include “peacetime enemies.”

But for Cuba, it might as well have been. A report prepared for former Secretary of State Henry Kissinger in 1970 warned that invoking TWEA was the “equivalent of economic war,” stating “no major industrial power uses any instrument of [its] intensity.”

Throughout the 1970s, TWEA faced increasing scrutiny in response to its being applied more widely to Cold War enemies under the justification of a “national emergency.” President Carter once again restricted TWEA to wartime enemies, but Cuba was grandfathered in as an exception.

TWEA has been applied to Cuba every year since 1963 by both Democratic and Republican administrations in part because it serves as one of the primary legal underpinnings for the U.S. embargo (referred to as the “blockade” in Cuba), which constitutes the most comprehensive sanctions regime imposed by any country on another in modern history. 

Since TWEA was first invoked, subsequent legislation has further expanded and entrenched the “blockade” on Cuba, most notably the Torricelli Act (1992) and the Helms-Burton Act (1996).

This means that even if Biden were to stop invoking TWEA for Cuba, the “blockade” would still exist as its legal basis is also buttressed by other laws and measures that could only be revoked through an act of Congress.

Individuals and companies subject to U.S. laws can engage with Cuban entities and nationals under limited exceptions, but they must obtain burdensome specific licenses from the Treasury and Commerce Departments and comply with draconian end-user verification provisions.

When U.S. or foreign entities operate under a general license, they are susceptible to being investigated, audited, fined or blacklisted for doing business with Cuba.

The Trading With the Enemy Act, extended for another year on September 2 in “the national interest,” underlies much of this vast web of punitive laws and regulations toward Cuba.

The Biden administration has sought to publicly distance its Cuba policy from Trump’s “maximum pressure” sanctions program, citing the resumption of visa processing at the U.S. Embassy in Havana and a loosening of travel restrictions.

But the U.S. economic war on Cuba, ratcheted up under Trump, remains in place both legally and effectively under Biden.