Introduction

Although it took a while, it is now commonly acknowledged that a president has the authority to unilaterally modify the United States embargo on Cuba. This power exists notwithstanding Congress’s attempted “codification” of the U.S. Treasury Department regulations that constitute that embargo.

It remains little understood, though, that the president has the power to go beyond modifying the Cuban embargo, and indeed may terminate it once and for all.    

That power exists despite a provision of the Helms-Burton Act that imposes political conditions on Cuba that must be met before the embargo can be lifted by presidential action. In summary, the authority to unilaterally terminate the embargo on Cuba is based upon the constitutional primacy of the president’s office in managing U.S. foreign relations.

Could anyone challenge such a unilateral presidential termination of the embargo on Cuba? Members of Congress might try, but would they meet the constitutional requirement of “standing” to mount such a challenge in federal court? The answer is no, they would find it impossible to establish the “standing” necessary to raise such a lawsuit because they would not be legally able to demonstrate actual personal harm arising from the embargo’s end, which is something they must, but cannot, prove to achieve standing.

However, for the sake of a complete analysis, we will assume for now that the standing of Congress members challenging a unilateral termination of the Cuban embargo is determined adequate by a court; what legal principles would a court apply in adjudicating whether a president has the power to end the embargo in defiance of the limits Congress attempted to impose in the Helms-Burton Act?

First, it is a venerable principle—both endorsed and repeatedly reaffirmed by the Judicial Branch—that the conduct of the nation’s foreign relations is a function that the Constitution entrusts to the president. It will not be permitted for that function to be usurped by Congress. Second, the “political question” doctrine encapsulates the judges’ desire to avoid entering into policy-based controversies rightly left to the elected branches of government. Whether the president or Congress is correct in their assessments of the desirability, or otherwise, of the Cuban embargo is precisely the kind of political question the courts of the United States have declined to adjudicate.

Taken together, the overarching principles of presidential supremacy in foreign relations and the political question doctrine would preclude a successful congressional challenge to a unilateral presidential termination of the Cuban embargo.

An attempted congressional usurpation of U.S.-Cuba policy from the president

The late Senator Jesse Helms and several Cuban American legislators designed the Helms-Burton Act of 1996 to strip President Clinton and his successors of the authority to end the Cuban embargo. They intended to achieve that goal by two means. First, the Act “codified” the restrictions of the embargo to prevent the relaxation of its various elements by the Executive Branch. Second, it attempted to entomb in Congress what it believed to be a now-frozen (“codified”) embargo. This second step was to be achieved by stipulating that the embargo could be terminated only if Cuba were to acquiesce in the transformation of its political, economic, and social systems, in accordance with the precise specifications of the Helms-Burton Act. Only then could a U.S. president end the embargo. Among the specified conditions that Cuba was required to meet: “Free and fair elections” must have been held in Cuba under the supervision “of foreign observers;” Cuba must be “substantially moving toward a market-oriented economic system;” Cuba must have made “demonstrable progress in assuring the right to private property;” Cuba must have permitted the “unfettered” deployment of “international human rights monitors” throughout the island; Cuba must release “all political prisoners;” Cuba must also have given assurances that “assistance” will be provided for the “Cuban people;” Cuba must have made “demonstrable progress in establishing an independent judiciary;” and Cuba must have “legalized all political activity;” Cuba must not block reception of U.S. government-funded radio and television broadcasts (i.e. Radio and TV Martí) that violate international communications treaties; and Cuba must have dissolved specified government agencies. The requirements can only be read as a demand for an unconditional surrender of sovereignty by Cuba in exchange for an end to the U.S. embargo.

Notably though, the extensive requirements placed on Cuba by the Helms-Burton Act would be impossible to apply and police by a U.S. court. The ostensible adjectival standards of the statute are simply too vague or indeterminate to be applied. For example, if the president terminates the embargo and members of Congress sue to enforce the requirements that the Helms-Burton Act imposes on Cuba as an argument, a court would be asked to resolve the following questions: what exactly constitutes a “political prisoner?” What constitutes “substantial movement to a market-oriented economy?” What is a “full and fair election?” How is “the right to private property” meant to be defined? What is an “unfettered” human rights monitor? Predictably courts will decline the invitation to do the Congress’s job in defining, beyond tossing around adjectives, precisely what is required of Cuba.

Even if carefully drafted, not one of the above-cited requirements imposed on Cuba is binding on a U.S. president. He or she may terminate the embargo on Cuba with no more than a written declaration to that effect. Alternatively, a president may let the statutory authority for the embargo lapse in September of any given year by doing nothing to renew that authority:

“The President may extend the exercise of [the Trading with the Enemy Act, upon which the Cuban embargo is based] for one-year periods upon a determination for each such extension that the exercise of such authorities with respect to [Cuba] for another year is in the national interest of the United States.”

There is simply nothing members of Congress can do regarding the means of embargo termination a president chooses. Some members of Congress, though, would like U.S. presidents to think otherwise. At the time of President Trump’s June 2017 announcement in Miami of his administration’s new Cuba policy there were preceding assertions of the primacy of the Helms-Burton Act and its preemptive effect on the formulation of U.S.-Cuba policy by any political actors other than Congress. The motive in those assertions was to convince Donald Trump that he is legally bound by the Helms-Burton Act to maintain a strict embargo on Cuba until the many and extreme conditions for termination of the statute are met by Cuba.

Then-Secretary of State nominee Rex Tillerson fell for Congress’ efforts when he framed U.S.-Cuba policy in congressionally-oriented terms, “How do we bring [the U.S.] into compliance with long standing statutory obligations? […] We think it is important that we take steps to restore the intent of the Helms-Burton legislation which was to put pressure on the regime to change.”

In his Cuba policy announcement in Miami, President Trump likewise referenced the Helms-Burton Act and said: “Our new policy begins with strictly enforcing U.S. law. We will not lift sanctions on the Cuban regime until all political prisoners are freed. Freedoms of assembly and expression are respected. All political parties are legalized. And free and internationally supervised elections are scheduled…” In so doing, Trump indicated a likely unwitting acceptance of Congress’ attempted usurpation of his foreign relations prerogative.

But he, or his successor, can learn that the self-proclaimed primacy of Congress with regard to the embargo on Cuba is preposterous when viewed through a constitutional lens. Trump, or any future president, can learn this simple truth and act on that knowledge to end the economic embargo against Cuba. In doing so they would achieve the foreign policy legacy that eluded President Obama notwithstanding his visit to Havana.

The lesson for the Trump administration in the failed “codification” of the embargo on Cuba

In 2006, ten years after the enactment of Helms-Burton, Fidel Castro transferred his powers of state onto his brother Raul, and the U.S. Executive Branch remarkably claimed to be unable to respond to that event:

A State Department official said there would be no change in policy towards Cuba, whether Castro or his brother Raul were in charge, because of American laws restricting U.S. dealings with the communist government. “This is one of our most regimented policies. Our hands are tied by laws,” said the official.

This was merely a repetition of the false wisdom that the Helms-Burton Act took embargo policy out of the hands of the Executive Branch by “codifying” it. The most surprising aspect of this misstatement of constitutional authority is that it came from the Executive Branch itself.

The provision in the Helms-Burton Act that “codified” the embargo on Cuba—in the sense that it purported to remove the discretion of the president to modify the embargo—reads:

Codification of Economic Embargo. The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of the Act (Helms-Burton Act).

The readily apparent problem with the “codification” of the embargo is that it codified the Cuban regulations verbatim “as in effect on March 1, 1996”—including the controlling provision, 31 C.F.R. § 515.201: “All transactions [involving Cuba] are prohibited except asspecifically authorized by the Secretary of the Treasury […] by means of regulations, rulings, [and] licenses”. The Helms-Burton Act simply left untouched the Executive Branch’s authority to modify the embargo on Cuba (i) by promulgating new regulations, (ii) by issuing specific licenses permitting new activities involving Cuba, or (iii) by generally licensing hitherto prohibited dealings with that country.

Proof that such executive authority remained unimpaired was provided shortly after the Act’s enactment when the Clinton administration invented a new category of authorized travel to Cuba under a general license, created to permit U.S. citizens to engage in “people-to-people” educational travel. Tellingly, Senator Helms did not challenge this rebuff of his “codification” attempt.

President Clinton’s Helms-Burton Act signing statement

President Clinton did not offer significant opposition to Senator Helms’ bill. Instead he relied on the advice of campaign operatives concerned about the South Florida vote in the reelection of 1996. So he remained quiet on the subject of the Helms-Burton legislation when it was before Congress. In the aftermath of two planes from Miami being shot down by the Cuban Air Force, he signed the bill into law. However, Clinton took an important step to preserve presidential authority over U.S.-Cuba policy by issuing a signing statement that said:

Consistent with the Constitution, I interpret the Act as not derogating from the president’s authority to conduct foreign policy. A number of provisions could be read to state the foreign policy of the United States […] While I support the underlying intent of these sections, the president’s constitutional authority over foreign policy necessarily entails discretion over these matters. Accordingly, I will construe these provisions to be precatory. The president must also be able to respond effectively to rapid changes in Cuba. This capability is necessary to ensure that we can advance our national interests in a manner that is conducive to a democratic transition in Cuba. Section 102(h), concerning the codification of the economic embargo, and the requirements for determining that a transitional or democratically elected government is in power, could be read to impose overly rigid constraints on the implementation of our foreign policy.

Clinton’s signing statement rejected both the codification of the embargo on Cuba and the purportedly binding nature of the requirements placed on Cuba (e.g., an independent judiciary) by the Helms-Burton Act for the termination of the embargo. In issuing his statement Clinton asserted the constitutional primacy of the president in foreign affairs. It is as accurate a description of the scope of the foreign policy prerogative of a U.S. president now as it was when he signed it.

That Clinton’s signing of the Helms-Burton legislation did nothing to legitimize the statute’s attempt to usurp presidential authority over Cuba-U.S. policy was demonstrated by the U.S. Supreme Court in a case where President George W. Bush signed legislation that ordered the Department of State to issue passports stating Israel as the place of birth for any U.S. citizen born in Jerusalem. The Bush administration opposed the law because it presumed Israeli sovereignty over Jerusalem when the U.S. policy was to preserve the status of the city for future multi-party negotiations. When he signed this legislation, Bush issued a signing statement rejecting the binding authority of the law:

If construed as mandatory rather than advisory, [the statute would] impermissibly interfere with the president’s constitutional authority to formulate the position of the United States [and speak] for the nation in international affairs.

The parents of a child born in Jerusalem filed a lawsuit to enforce the law and the matter reached the Supreme Court. The Bush administration won the case based on a traditional judicial deference to the longstanding prerogative of the president to conduct the country’s foreign relations. Zivotofsky’s case underscored the fact that signing a bill that derogates from the presidential foreign relations prerogative does not diminish a later assertion of that inherent constitutional power: And such is the case with Cuba and the Helms-Burton Act.

An impermissible legislative veto

As we have seen, the Helms-Burton Act purports to set out the requirements that Cuba must meet for the president to terminate the embargo. If the president acts to terminate the embargo and Congress disapproves of that action, the Act declares that the president’s action will “cease to be effective” once Congress enacts a joint resolution of disapproval. Astonishingly, the above provision constitutes an impermissible legislative veto that congressional lawyers should have recognized immediately.

Legislative vetoes were deemed unconstitutional and prohibited by the Supreme Court in INS v. Chadha. In that case, Chadha overstayed his student visa and a judge suspended his deportation. The House of Representatives vetoed the suspension and voted to overturn the Executive Branch’s determination that Chadha be allowed to stay. The Supreme Court struck down that legislative action by ruling that it violated the Presentment Clause of the Constitution, which enshrines the requirement that a congressional bill must be formally presented to the president for their signature, so that it may be vetoed or made lawo.

Because there is no provision for presentation to the president of the congressional joint resolution rendering the president’s action “ineffective,” if such a resolution is passed and then invoked in court against a president for failure to comply with the Helms-Burton Act’s conditions for lifting the embargo on Cuba, the judge will simply strike it down.

 A section of the Helms-Burton Act refers to the “enactment of a joint resolution,” but goes on to provide in the following subsection that “For purposes of this subsection, the term “joint resolution” means only a joint resolution of the 2 Houses of Congress.” In so doing, Congress omitted the requirement of presentation of the resolution to the president for his or her action. However, even if a presentment to the president of the joint resolution was intended, a president that terminates the embargo – notwithstanding the conditions prescribed for such termination by Helms-Burton – can hardly be expected to sign a joint resolution that would reverse his or her action in terminating the embargo. So the embargo would remain terminated notwithstanding Congressional passage of a joint resolution.

It is unlikely that a court would pay much regard to arguments urging it to overturn a presidential action as contrary to the will of Congress, when that body’s attempt at a mechanism to override the disputed action has been found to be unconstitutional or simply ineffectual because its ultimate fate lies with a president who has already deliberately acted contrary to the statute. In other words, Congress chose its remedy and when that remedy proves to be constitutionally defective or ineffectual, the Judicial Branch – a branch of government that, by constitutional design and its own preference, is to play no role in the formulation of the nation’s foreign policies – will not invent a means of salvation for Congress’ usurpation of the president’s foreign affairs prerogative.

Members of Congress do not have the standing to challenge a presidential termination of the embargo on Cuba

In considering possible congressional reaction should a president simply lift the embargo, we should perhaps first ask whether members of Congress will do anything at all.

Following the 1999 post-codification Cuban embargo reforms of President Clinton (e.g., the creation of new categories of authorized travel), Representative Ros-Lehtinen said, “we want to know where is the legal controlling authority that authorizes them to change the law. The way we read Helms-Burton, they do not have any such authority.”

There was talk of suing Clinton at the time, but nothing came of it. If the past is any guide, members of Congress will presumably take no action should the president terminate the embargo without requiring Cuba to conform to the myriad conditions of the Helms-Burton Act.

It is worth noting that the Helms-Burton Act is something of an orphan statute. Fewer than ten of the one hundred senators at the time of its passage in 1996 remain in Congress and none of them strongly supported the Act at the time of its passage. It is therefore questionable whether they would bother to file a suit challenging a presidential termination of the embargo on Cuba.

If, however, they do elect to sue, the legal requirement of “standing” will present a formidable challenge to a congressional litigant challenging Executive Branch action.

Should individual members of Congress file suit, they will allege that the president has failed to follow the requirements of the Helms-Burton Act for the termination of the Cuban embargo. Before a court will even consider the merits of such a claim it will insist that the plaintiffs demonstrate constitutional standing. To do so they must show an injury-in-fact that is directly attributable to an alleged failure of the Executive Branch to follow the law in question. What member of Congress could sustain such a claim with respect to the Helms-Burton Act? The short answer is, not one.

“Standing” to bring suit must be affirmatively established by a plaintiff challenging an action of the Executive Branch. The Supreme Court has ruled that in order to have such standing to litigate a claim, a plaintiff must “allege […] a personal stake in the outcome of the controversy.”

The constitutional test for standing evolved by the judiciary requires that a plaintiff show that he or she has suffered (1) an injury-in-fact, which (2) is fairly traceable to the challenged conduct and (3) is redressable by a favorable judgment. Members of Congress challenging termination of the Cuban embargo by the president must state a claim showing an injury more personal and direct than simply an abstract interest in U.S.-Cuba policy. For example, in Harrington v. Bush, the D.C. Circuit denied standing to a member of Congress who challenged the legality of certain acts of the CIA and claimed that they diminished his effectiveness as a legislator.

Suits by members of Congress brought against the Executive Branch invoke complicated separation of powers concerns for the federal courts. Such concerns leave judges reluctant to open the courts to legislators when they allege only “generalized, amorphous injuries due to […] the conduct of the Executive”.

Members of Congress would not be able to demonstrate standing to challenge a president’s unilateral lifting of the Cuban embargo, because they cannot show injuries to themselves attributable to that action.

Judicial deference to presidential exercises of the office’s foreign affairs prerogative

A president’s plenary prerogative to conduct the nation’s foreign affairs has been central to the clear and expedient formulation and execution of U.S. foreign policies. The recognized need for the U.S. to speak with one voice in foreign matters has resulted in a president’s actions being given extraordinary deference by the courts. In United States v. Curtiss-Wright Export Corp., the Supreme Court described the constitutional scope of the president’s authority over the nation’s foreign policies:

It is important to bear in mind that we are here dealing with […] the very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.

In foreign affairs-based court contests between Congress and presidents, the latter have always won. There is no reason to believe a suit by members of Congress challenging a unilateral termination of the embargo on Cuba will lead to a different result.

The political question doctrine

Courts, in deciding whether to adjudicate certain controversies, perform a “political question” analysis which seeks to determine whether the question presented should be reserved for Congress and the president to resolve. That is, the courts must decide initially whether the matter is inherently political rather than legal, and, if so, they must leave it to what are called the “political branches” of government to resolve, through such means as Congress’ “power of the purse” and “advice and consent” to presidential appointments.

In hearing a suit based on the Helms-Burton Act and its codification of the embargo against Cuba, a court would inevitably be asked to decide, effectively, whether the president or Congress has the better Cuba policy. This is something that the courts will not do. In Sanchez-Espinoza v. Reagan, a claim was brought by members of Congress arguing that President Reagan’s aid to Contras amounted to waging war in violation of the Constitution’s war power clause. The case was dismissed on the ground that the complaint amounted to a political question. Similarly, in Crockett v. Reagan, a claim brought by members of Congress that challenged the presence of military advisors in El Salvador as a violation of the War Powers Resolution and the war powers clause of the Constitution was also dismissed as a political question.

President Obama attempted to normalize relations with Cuba. President Trump has strengthened sanctions against Cuba. Congress legislated conditions for ending the embargo. Given the level of past and present political discord relating to the U.S. embargo against Cuba, inviting a U.S. court to decide a given policy’s wisdom will almost certainly be declined as a non-justiciable “political” question.

International law is the law of the United States and U.S. Courts refuse to act contrary to that body of law

Should members of Congress sue to enforce the requirements demanded of Cuba by the Helms-Burton Act (e.g. Cuba must adopt a “market-oriented economy”), they will inevitably end up subjecting the Act’s requirements to an international law-based review and analysis by a U.S. federal court. In Paquete Habana ,the Supreme Court said, “[i]nternational law is part of our [U.S.] law and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”

Whether or not it is legally permissible for the U.S. to coerce the transformation of Cuba’s economic and political institutions is a question that can only be answered by a U.S. court through reference to the international law principle of nonintervention. As its name suggests, this principle holds that nations may not meddle in the internal affairs of other nations. As one eminent commentator said, “the most fundamental postulate underlying the state system is the notion that one does not try to control political developments in foreign societies.”

From its earliest days as an independent country, the U.S. has subscribed to the nonintervention principle. In the 1825 case of The Antelope where the U.S. Supreme Court said, “no principle of general law is more universally acknowledged, than the perfect equality of nations… It results from this equality, that no one [nation] can rightfully impose a rule on another.”

Thomas Jefferson framed the matter in terms of the rights of nations as derived from natural law. “Every nation has, of natural right, entirely and exclusively, all the jurisdiction which may be rightfully exercised in the territory it occupies.”

In The Schooner Exchange v. McFaddon, a frequently-cited case in support of the principle of the exclusive jurisdiction of a state over its territory, Chief Justice Marshall said:

The jurisdiction of [a] nation within its own territory is necessarily exclusive and absolute. It is susceptible to no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction.

In the present era, the International Court of Justice had this to say on the matter of what is forbidden by the public international law principle of nonintervention:

[T]he principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free.

In an early American case, Murray v. The Charming Betsey, the Supreme Court held that acts of Congress should not be interpreted to violate international law unless no other construction is possible. A later iteration of the Supreme Court’s propensity to read statutes in ways that avoid congressional violations of international law is found in F. Hoffman-La Roche Ltd. et al. v. Empagran S. A. et al., where the Supreme Court held that it will construe statutes to avoid interference with other states’ sovereignty.

In the case of the Helms-Burton Act, a court will be asked to rule that the statute’s requirements placed on Cuba for the lifting of the embargo are illegitimate because they clearly violate Cuba’s sovereignty. As a result, they violate international law. Because international law is the law of the U.S., it must be applied by U.S. courts. It follows that those courts, in conformity with that body of law, will deem the conditions for ending the embargo placed on Cuba as merely precatory and therefore unenforceable by members of Congress.

How the embargo may be terminated

To end the embargo on Cuba the president may simply declare it terminated and issue the executive orders necessary to resume trade and investment with Cuba. Alternatively, the president may simply let the embargo die through non-extension. Authority for the Cuban embargo regulations stems from section five of the Trading with the Enemy Act (TWEA). In 1977, Congress amended section 5(b) to limit the president’s power under the TWEA to time of war. At the same time Congress provided that any section 5(b) authorities being exercised with respect to Cuba on July 1, 1977, could continue to be exercised. However, such authority will terminate unless extended annually by the president, for a further one-year period, upon the making of a written determination that such an extension is in the “national interest.”Therefore all that is required to end the Cuban embargo is for a president to refuse, either actively or passively, to extend it when it comes up for its yearly renewal. 

The president lifts the embargo: what happens next?

Cuba and the U.S. are founding members of the World Trade Organization (WTO). When the WTO was established in 1995 both countries accepted the General Agreement on Tariffs and Trade (GATT) as binding on all members. Article I of the Agreement prohibits signatories from discriminating among member nations when extending trade benefits. For example, if a nation grants another nation a particular customs duty rate on a product, it must grant that rate to all WTO members. This means that both the U.S. and Cuba must extend Most-Favored-Nation (MFN) treatment to other members’ exported products. Therefore, Cuban goods imported into the U.S. must receive entry terms as favorable as those extended to other WTO members’ products. 

However, under Article XXI of the GATT a nation can opt out of its obligations to a particular nation by claiming it is “necessary for the protection of its essential security interests.” In 1962 the U.S. invoked the Article XXI exemption of GATT when President Kennedy established the current embargo on Cuba. Kennedy’s invocation has since remained in effect. Opting back into MFN treatment of Cuba is, though, a simple matter. All it will take for such status to apply to Cuban products is a stroke-of-a-pen presidential rescission of Kennedy’s 1962 action.

But even without a restoration of MFN status, Cuban products may be imported into the U.S. under Column II of the current tariff schedule. Column II duties vary greatly, but most are quite modest or, in many cases, non-existent because duty does not apply to the product category. There is also an embargo exception available to items produced by “independent Cuban entrepreneurs as determined by the State Department.” For example, Cuban coffee has been imported into the U.S. by Nespresso without payable duty. Similarly, Amazon has sold Cuban charcoal in the United States. Again, no duty applied.

A representative item to which a Column II duty would apply (chosen at random for the purpose of illustration) is the Cuban beer, Cristal. The duty on it would be 9 cents per 355 ml. Column I duties (i.e. MFN) for beer are zero. So, with or without MFN treatment, most Cuban products may competitively enter the U.S. market upon a presidential termination of the embargo.

Conclusion

Obama’s normalization initiative with Cuba ended up being too modest in scope to constitute an enduring foreign policy legacy. Truly normalized relations with Cuba will be characterized by an end to the U.S. embargo and the resumption of bilateral trade, as was the case with China. President Trump has the power to do both. If he chooses not to exercise that power, inevitably a future president will, and in so doing he or she will lay claim to the resulting legacy.

Robert L. Muse is a lawyer in private practice in Washington, D.C. He has written widely and testified on U.S. laws relating to Cuba before the U.S. Senate and House of Representatives; the Canadian House of Commons; the U.S. International Trade Commission and the External Economic Relations Committee of the European Parliament (Brussels). He has spoken at many universities about U.S. law and policy regarding Cuba, including Columbia, Georgetown, Harvard, Fordham, and the Universities of California, Georgia, North Carolina and Havana.

By Robert L. Muse 

Source: Global Americans