By John Shu
In December 2014, President Obama announced that he would take executive action to significantly ease the U.S. embargo on Cuba. The embargo’s supporters and opponents reacted swiftly and loudly. Those concerned about President Obama’s constitutional overreach also reacted swiftly, although, in the national media discussions, the politics and policy issues generally drowned out the constitutional questions. This article will more closely examine the constitutional questions of whether President Obama had the authority to take December’s action.
A Congressional lawsuit against the Office of the President claiming executive branch overreach with respect to the Cuba embargo would end up in the U.S. Supreme Court. The Court’s current composition, the current statutory structure, and the existing caselaw on executive branch authority with respect to foreign affairs / international relations all indicate that the Court would likely find that the President has very wide latitude on the scope, execution, and enforcement of the Cuba embargo, so long as the executive branch remained within constitutional and statutory limits.
President Kennedy started the formal embargo in February 1962 as an executive branch action in accordance with the Trading With The Enemy Act of 1917 (“TWEA”) and the Emergency Banking Relief Act of 1933 (“EBRA”). TWEA gave the President the authority to oversee and/or restrict any and all trade between the U.S. and hostile countries during wartime. EBRA extended the President’s authority to include any declared national emergency, not just those during wartime. The Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury has been and still is the executive branch agency responsible for administering and enforcing sanctions, including the Cuba embargo (see, e.g., Cuban Assets Control Regulations, 31 C.F.R. Part 515). President Truman created OFAC in December 1950; China entered the Korean War and President Truman blocked all Chinese and North Korean assets subject to U.S. jurisdiction.
In 1996, President Clinton signed the Helms-Burton Act into law. Helms-Burton, among other things, essentially codified the Cuba embargo as it was in 1996, strengthened international sanctions against Cuba, and provided for a program of incentives to promote open democracy in Cuba. OFAC still retained administrative authority over the embargo, but within Helms-Burton’s broad and sometimes unclear framework.
Thus, the key question is whether President Obama’s planned easing of the embargo is consistent with Helms-Burton. OFAC has not yet finished all of the new language in the Code of Federal Regulations; thus, the answer cannot be known at this point. While Helms-Burton prevents President Obama from unilaterally lifting the embargo completely, the Court has made clear that the President has certain plenary powers, independent of Congress, in the conduct of the nation’s foreign affairs. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). The President’s authority is much less likely to be questioned when he acts pursuant to explicit Congressional legislation, compared to acting at odds with Congress (usually meaning already-existing legislation). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Even so, the Court is more likely to give deference to the President in foreign affairs than domestic affairs. Regan v. Wald, 468 U.S. 222 (1984). See also, Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) and Dames & Moore v. Regan, 453 U.S. 654 (1981). In Dames & Moore, the Court gave particular deference to the executive branch despite no specific statutory authorization, and the Court made special note of the long history of Congressional acquiescence with regard to executive activity in foreign affairs.
The Court’s current approach to foreign affairs legislative analysis is that it will not infer a Congressional limit on presidential authority unless the statute’s language and legislative history clearly indicate that. In fact, the caselaw hints that the Court will very likely presume Congressional acquiescence or concurrence in the executive branch’s foreign affairs policy unless Congress explicitly declares otherwise. The biggest problem for this Congress with respect to any new bills on the Cuba embargo is that President Obama will veto any bills which go against his foreign affairs policy, and the Republicans do not have veto-proof supermajorities in the House and Senate.
President Obama twice eased travel restrictions to Cuba in 2009 and 2011. Further travel restriction is unlikely to violate Helms-Burton, especially because tourism probably will not be generally licensed, although Americans will probably be able to obtain travel licenses for photography, yoga, ornithology, et cetera. The President’s proposed plan to permit Americans to bring back from Cuba $400 worth of goods, with a maximum of $100 worth consisting of alcohol and tobacco, is also unlikely to violate Helms-Burton because such small individual amounts would not be considered imports for sale. The President’s plan to permit American travelers to Cuba to use their credit and debit cards may be problematic because Cuba’s banks have not met disclosure standards that U.S. banks and already-existing U.S. law require.
The 114th Congress will not be completely helpless on the Cuba issue. For example, the Congress may choose to not provide funding for an American embassy in Cuba. It may also choose to insert policy riders in upcoming budget and appropriations bills. Congress could also choose to increase funding of TV and Radio Martí to Cuba, increase funding to Naval Station Guantánamo Bay, and increase covert funding for democracy promotion programs in Cuba. The Senate, acting alone, could choose to either reject or not even hold hearings for anyone President Obama nominates to be U.S. Ambassador to Cuba, and reject proposed treaties regarding Cuba that it does not like.
Additionally, Congress should seriously consider laying a clear legislative history for a future Supreme Court case regarding the Cuba embargo. Congress may choose to pass legislation which further tightens Helms-Burton and very clearly lays out the President’s specific authorities in administering the embargo. Although President Obama would veto the bill(s), it would show Congress’ intent.
Battles between Congress and the President are more political than legal, and the Cuba embargo is no different. Congress has an inherent disadvantage in that 435 House members, 100 Senators, and one Vice-President act much more slowly and diffusely than one President. It will come to depend on the strength of Congressional will.
John Shu is an attorney and U.S. Supreme Court expert and author of the Law & Public Policy Column. Mr. Shu served both President George H.W. Bush and President George W. Bush, and clerked for Judge Paul H. Roney, U.S. Court of Appeals for the Eleventh Circuit.