Can Obama Unilaterally End the Cuba Embargo?

Can Obama Unilaterally End the Cuba Embargo?
Posted: 08/31/2015 1:34 pm EDT Updated: 08/31/2015 1:59 pm EDT
Jose Gabilondo - Financial Commentator, Professor of Law, Florida
International University

Especially when imposed by a hegemon on a small and vulnerable country,
an embargo is an act of political hatred for that country and its
people. Its goal is to isolate these targets from the support of others,
so an embargo also visits collateral damage on third parties.

President Obama has said that he wants to end the Cuban embargo. Soon he
must make two decisions that will suggest how serious he is.

This month he must decide whether the Trading With the Enemy Act still
authorizes sanctions against the island. TWEA requires an annual
determination by the president that a national emergency exists with
respect to Cuba, one that justifies sanctions. Every U.S. President
since Jimmy Carter (including Obama) has so determined.

This year is different, as I have pointed out. On December 17, 2014, the
leaders of both countries announced the restoration of diplomatic
relations. Given this rapprochement, I don't believe that the president
can invoke TWEA, even if he wanted to. Such emergencies may have existed
during the Cuban missile crisis or the Mariel boatlifts, but budding
diplomatic relations do not an emergency make. Though a handful of
hardliners (in the U.S. and, to a much lesser extent, Cuba) oppose
normalization, it enjoys broad support.

Scrapping TWEA would not mean the end of Cuba sanctions, because they
rest on other legal support. The embargo began as a creature of
executive discretion in 1962 when Kennedy imposed it. His statutory
authority was the Foreign Assistance Act of 1961, which allowed - but
did not require - him to do so. Added later as separate authority for
the sanctions, TWEA also allowed but did not require an embargo.

In 1992, Cuba hawks in Congress tried to bind the president's hands.
Fearing a dovish executive, they 'codified' the embargo. This meant
enacting as federal statute rules that had formerly depended on the
president's discretion. This legislative strategy intensified four years
later with the Helms-Burton Act, which added new preconditions for the
embargo to be lifted. By sleight of hand, Congress had shifted the locus
of control of the embargo from the president to Congress. Or so it seemed.

A second litmus test of the president's resolve is the annual resolution
of the United Nations against the embargo. Last year, all but five of
the General Assembly´s 193 countries supported it. Predictably, the U.S.
has opposed the resolution for over 20 years.

For the first time in half a century, though, the president and Congress
have parted ways on Cuba. Though confirmed by Congress to represent the
U.S in the United Nations, Ambassador Power represents the president,
who has spoken against the embargo. She should support the resolution or
at least abstain during the vote, recognizing the federal government´s
internal conflicts on the issue. We´ll see.

Can the president end the embargo on his own? According to the
Congressional Research Service, the consensus is 'no' because of
Congress' 1992 and 1996 power grabs. The question of independent
presidential authority never mattered while the president and Congress
were in cahoots because executive authority is unambiguously broad
enough to support the embargo. Occasional inter-branch skirmishes took
place, as when President Carter authorized the Cuban and U.S. interest
sections, but they did not rupture the policy harmony.

Now the question of presidential authority becomes relevant because the
president and Congress hold sharply different views. The Constitution
divides authority for foreign affairs between the president and
Congress, although determining their respective roles can be tricky.
Sometimes Congress must yield to the president, however, the Israeli
passport case being a good recent example. Insofar as the embargo - the
executive embargo - rested on authority vested only in the president -
but not Congress - the 'codifications' fall short of the goal.

So what? Well, in a long-arm assertion of executive power, the president
could retract any discretionary executive authority for the embargo.
Just as TWEA was added as additional authority, a notice in the Federal
Register could state that henceforth the embargo rested neither on TWEA
nor the Foreign Assistance Act of 1961 but, instead, only on Congress´
putative codification. That would leave a Congressional embargo on Cuba,
implemented by the president insofar as required to statutorily, but no
further.

Would that embargo be different from the one currently supported by
executive authority? Maybe. It depends on whether Congress had authority
on its own to impose and remove an embargo on Cuba, a legal question yet
to be adjudicated by federal courts.

The president wouldn't have to litigate the issue. By explicitly
revoking all discretionary executive authority for the embargo, he'd be
clearing a path for private actors to challenge the Congressional
embargo in federal courts.

Assume that the president revokes this authority. Imagine a U.S.
business that wants to trade with Cuba but is stymied by the
Congressional embargo. Without executive support, the sanctions become
more vulnerable to legal challenge. If the business could show standing
(no mean feat), a district court might be persuaded to take up the
question now.

Federal courts often - but not always - stay out of disputes between the
president and Congress over who can do what in international affairs, so
I'm not holding my breath. That said, the only players in this drama are
not the Congress, the president, and the Cuban government. As it must,
D17 will create new incentives for private actors to get involved now
that the stakes on the island are higher.

Follow Jose Gabilondo on Twitter: www.twitter.com/JMGabilondo

Source: Can Obama Unilaterally End the Cuba Embargo? | Jose Gabilondo -
http://www.huffingtonpost.com/jose-gabilondo/can-obama-end-longtime-cuba-embargo_b_8059762.html