Obama Announces Restoration Of Diplomatic Relations Between The U.S. And Cuba

New York Times: “U.S. To Restore Full Relations With Cuba, Erasing A Last Trace of Cold War Hostility.” On December 17, Obama announced that he would take steps to improve ties with Cuba by lifting some travel and trade restrictions as well as reopening the U.S. Embassy in Havana. As the Times reported, the “historic deal” brokered between Obama and Cuban President Raúl Castro “broke an enduring stalemate between two countries” that has lasted for decades:

President Obama on Wednesday ordered the restoration of full diplomatic relations with Cuba and the opening of an embassy in Havana for the first time in more than a half-century as he vowed to “cut loose the shackles of the past” and sweep aside one of the last vestiges of the Cold War.

The surprise announcement came at the end of 18 months of secret talks that produced a prisoner swap negotiated with the help of Pope Francis and concluded by a telephone call between Mr. Obama and President Raúl Castro. The historic deal broke an enduring stalemate between two countries divided by just 90 miles of water but oceans of mistrust and hostility dating from the days of Theodore Roosevelt's charge up San Juan Hill and the nuclear brinkmanship of the Cuban missile crisis.

“We will end an outdated approach that for decades has failed to advance our interests, and instead we will begin to normalize relations between our two countries,” Mr. Obama said in a nationally televised statement from the White House. The deal, he added, will “begin a new chapter among the nations of the Americas” and move beyond a “rigid policy that is rooted in events that took place before most of us were born.” [The New York Times, 12/17/14]

Media Figures Suggest Obama Is Overstepping His Authority

Fox's Monica Crowley: “Now You Actually Do Have An Imperial Presidency Under Barack Obama.” On the December 18 edition of America's Newsroom, Fox News contributor Monica Crowley argued that Obama's decision to improve relations between the U.S. and Cuba is further evidence of the president “setting some seriously dangerous precedents.” Crowley also said Obama has “just acted on his own because he doesn't care about the rule of law, Congress, or public opinion.” [Fox News, America's Newsroom, 12/18/14]

CNN's Ana Navarro: Deal Is A “Very Unilateral Change Of Policy.” On CNN Newsroom, CNN political commentator Ana Navarro criticized the deal as a “very unilateral change of policy.” She added that “there's only so much that the president can do through executive order. I'm sure there's much more he can do. But the U.S. embargo is codified in law. That means that it needs to be decodified in law.” [CNN, CNN Newsroom, 12/17/14]

Fox's Kennedy: Obama Cannot “Touch” The Embargo “Without Congressional Approval.” On Fox News' Outnumbered, co-host Kennedy said Obama “could not unilaterally lift the embargo” against Cuba. Kennedy continued, “you can't touch [the embargo'] without congressional approval.” [Fox News, Outnumbered, 12/17/14]

Embargo Began With Presidential Action, But Was Later Signed Into Law

Kennedy Initiated Embargo Against Cuba Through Executive Action In 1962. On February 3, 1962, President Kennedy announced a total trade embargo of Cuba. The Associated Press described the decision as “the beginning of a comprehensive ban on U.S. trade with the island that has remained more or less intact ever since.” [Associated Press, 2/7/12]

Federal Laws Formalized Embargo In 1992 And 1996. The South Florida Sun-Sentinel reported that the 1992 Cuban Democracy Act “bar[red] trade with Cuba by U.S. corporate subsidiaries in other countries.” According to PBS NewsHour, the 1996 Helms-Burton Act “formalized the U.S. trade embargo of the island nation, in effect by presidential order since the Kennedy administration.” [Sun-Sentinel, 10/24/92; PBS NewsHour, 7/16/01]

Bush Tightened Travel Restrictions In 2003. The BBC reported that in October 2003, “US President George Bush announce[d] fresh measures designed to hasten the end of communist rule in Cuba, including tightening a travel embargo to the island, cracking down on illegal cash transfers, and a more robust information campaign aimed at Cuba.” [BBC News, 10/11/12]

Obama Is Not Lifting The Embargo, But Experts Have Long Agreed That The President Has Ample Discretionary Authority In Its Implementation

The Hill: “Neither The Trade Nor The Travel Embargo Is Being Lifted.” As The Hill reported, while the president “has significant powers at his disposal” to make changes to trade and travel restrictions between the U.S. and Cuba, Obama's action does not lift the embargo entirely. Moreover, Obama's executive action is based in part on statutory authority already granted to him by Congress:

President Obama has significant powers at his disposal to make the U.S. trade and travel embargoes on Cuba meaningless, though action by Congress is required to formally lift the sanctions.

Six separate laws dictate the terms of sanctions on Cuba. They range from the Trading with the Enemy Act of 1917 to the Trade Sanctions Reform and Export Enhancement Act of 2000.

It was President John F. Kennedy who prohibited U.S. exports to Cuba under the Trading with the Enemy Act shortly after Fidel Castro took control of the island nation.

Since then, Congress has moved periodically to toughen the sanctions with legislation, and a series of presidents have also taken executive steps to tighten or loosen the screws on Cuba.

Experts agree that Obama, who with actions on healthcare and immigration has signaled a willingness to test the lengths of executive power, has significant discretion when it comes to U.S. policy toward Cuba.

The six laws are written in a way to give the executive branch latitude in enforcing the law, and regulations are used to implement many of the sanctions.

“The laws were written in such a way that gave the executive branch a good amount of leeway,” said John Kavulich, senior policy adviser for the U.S.-Cuba Trade and Economic Council. "He has a lot of discretion, and it seems as though he's intending to use it.

Obama on Wednesday announced the U.S. will seek formal diplomatic relations with Cuba, and travel and trade restrictions will be eased.

Neither the trade nor the travel embargo is being lifted, but Obama's announcement will make it easier to get a license to travel to Cuba and will allow visitors to bring back goods to the United States. Americans also will be able to send up to $8,000 a year to Cubans and will no longer need a specific license to do so. [The Hill, 12/17/14]

Government Accountability Office: “The President Has Broad Authority To Modify” Embargo Regulations. The GAO has been asked repeatedly to analyze the president's executive discretion on diplomatic relations with Cuba within the bounds of “various laws, regulations, and presidential proclamations regarding trade, travel, and financial transactions.” The GAO, an independent legislative agency charged with nonpartisan analysis of U.S. policy, has concluded that Congress has codified the power of the president to “ease regulatory restrictions” of the embargo and if certain conditions are met, and even end sanctions entirely:

The President has discretion to further ease regulatory restrictions such as those on travel, remittances, gift parcels, and trade with Cuba. For instance, the President can authorize travel under a general license for non-family travelers -- such as freelance journalists, professional researchers, and full-time students -- who currently must obtain a specific license; further increase the amount of cash remittances that travelers may carry to Cuba; and further expand the list of items eligible for gift parcels.

The President is authorized to suspend or end the embargo in the event of certain political changes in Cuba. Under the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, on determining that a transition Cuban government is in power, the President may take steps to suspend the embargo, including its implementing regulations restricting financial transactions related to travel, trade, and remittances. He may also suspend enforcement of several legislative measures related to the embargo. LIBERTAD also requires that on determining that a democratically elected Cuban government is in power, the President must take steps to end the embargo, including the implementing regulations, and that once he has made such a determination, certain listed embargo-related legislative measures are automatically repealed. [Government Accountability Office, 9/17/09]

American University Professor Of Government: Congress Gave The President “Virtually Unlimited Licensing Authority To Tighten Or Loosen Sanctions.” Although the legal authority for the embargo originated with the executive actions of former Presidents Truman and Kennedy during the Cold War, the ability to end it entirely has been curtailed by Congress. However, as American University School of Public Affairs professor William M. LeoGrande explained, bipartisan Congresses still “codified the president's authority to license exceptions to the embargo”:

Although [the Trading With The Enemy Act of 1917 (TWEA)] was its original statutory foundation, the Cuban Liberty and Democratic Solidarity Act of 1996 (aka Helms-Burton) wrote the embargo into law by stipulating that the economic sanctions in place at the time of passage would remain in place until Cuba underwent regime change. And other laws authorize various bits and pieces of the embargo: for example, the Foreign Assistance Act of 1961 (§620(a)) gives the president the authority to impose a trade embargo on Cuba; the Cuban Democracy Act of 1992 prohibits trade with Cuba by foreign subsidiaries of U.S. companies; and the Trade Sanctions Reform and Export Enhancement Act of 2000 prohibits tourist travel (§7209(b)). So the embargo would continue even without TWEA.

But the president's legal authority to change Cuba sanctions would become far more tenuous. The TWEA gives the president virtually unlimited licensing authority to tighten or loosen sanctions, authority that would disappear if the president failed to renew it. When Helms-Burton codified the Cuban sanctions regulations, it also codified the president's authority to license exceptions to the embargo, thereby loosening sanctions, since the regulations specifically refer to that authority (§515.201). But absent some statutory authority other than TWEA, it is not clear that the president could tighten sanctions.

A president who tried would be vulnerable to legal challenge by anyone sustaining damage as a result. In Regan v. Wald, the Supreme Court found that President Ronald Reagan was legally justified in tightening restrictions on travel to Cuba because of the broad authorities he retained under TWEA. [Huffington Post, 12/2/14]

Economic Sanctions Expert:  Presidents Have Repeatedly Modified The Embargo “Without Action Or Approval By Congress.” In a legal analysis prepared for a 2011 Brookings Institution forum on relations between the U.S. and Cuba, Stephen Propst, an attorney specializing in export control law and economic sanctions, concluded that the “President retains broad authority to significantly modify and even ease specific provisions of the Cuba sanctions.” Furthermore, as Propst explained in the analysis, multiple presidents -- including former President George W. Bush -- have unilaterally modified the regulatory enforcement of the embargo, providing precedent “to ease sanctions against Cuba” through executive action:

Through a complex series of federal statutes, Congress has codified the comprehensive U.S. economic sanctions against Cuba and restricted the President's authority to suspend or terminate those sanctions until a “transition government” is in power in Cuba. Notwithstanding these statutory requirements, the President maintains broad authority and discretion to significantly ease specific provisions of the Cuba sanctions regime in support of particular U.S. foreign policy objectives recognized by Congress, including the provision of humanitarian support for the Cuban people and the promotion of democratic reforms. In fact, since Congress codified of the Cuba sanctions in 1996, Presidents Clinton, Bush and Obama have each exercised this authority to ease the scope of restrictions applicable to Cuba, without action or approval by Congress. This executive authority to modify the Cuba sanctions is grounded in Constitutional, statutory and regulatory provisions that empower the President and the responsible executive branch agencies to grant exceptions to the sanctions through executive actions, regulations and licenses. The authority is particularly broad in certain areas, such as telecommunications-related transactions and humanitarian donations, where Congress has explicitly granted discretion to the President under existing statutes. 

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Notwithstanding this framework of successive federal statutes mandating sanctions against Cuba, the President retains broad authority to significantly modify and even ease specific provisions of the Cuba sanctions. This conclusion is supported by two separate reports prepared by the U.S. General Accounting Office (“GAO”), following detailed reviews of the statutory framework and regulatory actions taken by the executive branch since the enactment of Helms-Burton in 1996. Specifically, the reports prepared at the behest of Congress in 1998 and in 2009 concluded that (i) the President still maintains “broad discretion” to make additional modifications to the Cuba sanctions; and (ii) prior measures, implemented by the executive branch that have had the effect of easing specific restrictions of the Cuba sanctions, have been consistent with statutory mandates and within the discretionary authority of the President. [“Presidential Authority To Modify Economic Sanctions Against Cuba,” 2/15/11]