Cuba as the next constitutional fight between Congress, Obama

The Obama administration’s move to end a decades-long feud with Cuba’s Castro regime is shaping up as the next big tug-of-war between the executive and legislative branches.

Already in the “balance of power” pipeline are fights over health care and immigration that involve the limits of presidential powers. Republicans taking full control of Congress in January have vowed to limit what President Obama can do in those areas via executive orders, actions and other Article II powers granted directly or implicitly to the President.

President Obama’s moves ease some, but not all, of trade and political restrictions in place against Cuba since the early 1960s. The President’s actions will be big tests of the already strained relationship between the President and Republican congressional leaders.

In his remarks on Wednesday, the President said he didn’t have the power to directly end a trade embargo law imposed on Cuba by Congress in the 1990s in the form of the Helms-Burton Act. President Bill Clinton signed the law in 1996, and it requires the Cuban government to make democratic changes that would grant its citizens political and economic rights before the embargo is lifted.

The President’s remarks indicate he will use his powers to diplomatically recognize Cuba, regulate trade licenses and prioritize how regulations are enforced to change at least part of the Helms-Burton Act’s intent.

And that has some members of Congress, already upset with President Obama, even more upset.

“I anticipate we are going to have a very interesting couple of years discussing how they are going to get an ambassador (to Cuba) nominated and how they are going get an embassy funded,” Senator Marco Rubio of Florida said on Wednesday. “I am committed to doing everything I can to unravel as many of these changes as possible.”

Across the aisle, Democrat Robert Menendez of New Jersey had harsh words about the proposals and he has asked for hearings in January.

“It’s a reward that a totalitarian regime does not deserve,” Menendez said. “I reject the notion that somehow it is the United States that has created hardship on the Cuban people.”

One precedent for diplomatic recognition of Cuba dates back to 1897, when the Senate struggled with the problem of recognizing a rebel Cuban movement that was trying to split from Spanish rule – without an official recognition coming from the White House. The Senate Foreign Relations Committee found that only the executive, and not Congress, has the power the recognize countries diplomatically.

“The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties,” it said, citing the President’s Article II powers.

So while the President can extend diplomatic recognition to Cuba and send an ambassador to Havana, Congress does have the power to withhold funding for the embassy there. The Senate through its Advice and Consent powers also can block the nomination of an ambassador, and even keep the nomination in a state of committee limbo.

“The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in ‘executive session.’ The legislative branch of the Government can exercise no influence over this step except, very indirectly, by withholding appropriations,” the Senate stated back in 1897.

The broader question will be how Congress reacts to the limited opening of trade with Cuba through Obama’s executive actions, without full-fledged moves on Cuba’s part to meet the Helms-Burton Act requirements for “a peaceful transition to a representative democracy and market economy in Cuba.”

There is already one lawsuit in the pipeline by Congressional Republicans against the Obama administration over the President’s enforcement of the Affordable Care Act, or Obamacare.

The White House has detailed moves it will make through the Commerce Department amending regulations and licenses, and through the Treasury Department making financial transactions easier to conduct. The actions include expanded travel opportunities, the ability of Americans to use credit and debit cards in Cuba, and the authorization of more exports and imports.

Another point of debate is Cuba’s current status as a state defined by the U.S. government as supporting terrorism. Officially, Cuba, Iran, Sudan and Syria are on the State Department’s list of “State Sponsors Of Terrorism.” The status greatly restricts trade with Cuba.

President Obama has directed Secretary of State John Kerry to report within six months about Cuba’s current support of international terrorism. (Cuba was placed on the list in 1962.)

The next steps for the administration would be to report, to the House and Senate, its intention to remove Cuba from the terror list 45 days before it takes such an action. Congress has the option to pass a law to counteract an executive branch decision to rescind state terrorism status – subject to a presidential veto.

But the bigger debate in the short term could be about the embargo and the the Helms-Burton Act.

The Miami Herald talked to Gary Clyde Hufbauer from the Peterson Institute for International Economics, who is an expert on international trade and has written about Cuba.

“But to be honest, he may be near the end of his string,” Hufbauer said potential reforms President Obama can make under his use of executive orders and amended regulations. “If Obama really wanted to be gutsy he could argue that Helms-Burton is an unconstitutional infringement on presidential power. But that would be a poke in the eye to Congress.”

Scott Bomboy is the editor in chief of the National Constitution Center.

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