Adios Embargo: The Case for Executive Termination of the U.S. Embargo on Cuba

• Published date: 01 June 2017
• Author: Kevin J. Fandl
• Date: 01 June 2017
• DOI: http://doi.org/10.1111/ablj.12100

Adios Embargo: The Case for

Executive Termination of the

U.S. Embargo on Cuba

Kevin J. Fandl*

INTRODUCTION

An entire generation of Americans has grown up with the belief that Cuba

was a forbidden place that tourists and investors alike could only access

through means of questionable legality. More than fifty years ago, Presi-

dent Kennedy signed into law the embargo that brought this unusual rela-

tionship into existence. That action effectively relocated an island only

ninety miles off the coast of Florida to a legal netherland inaccessible to

the average American. The only glimpse that many of us get of the small

island is from 30,000 feet as we fly over on our flights to Latin America.

All of that is beginning to change. Suddenly, those of us who have

rarely thought about Cuba are seeing it plastered across news headlines

as the Obama Administration aggressively pursued a refashioned rela-

tionship. This is causing concern for some, curiosity for others, and

most importantly, anticipation.

1

The United States opened a diplomatic

mission in Cuba in 2015, raising the American flag over Havana for the

first time since 1961.

2

Likewise, Cuba reopened its embassy in

*Assistant Professor of Legal Studies and Strategic Global Management, Temple University.

Ph.D.,George Mason University, J.D.-M.A.,American University, B.A., Lock HavenUniversity.

1

See, e.g., Rebecca Nelson, Ted Cruz: Obama’s New Cuba Policy ‘Will Be Remembered as a Tragic

Mistake’,T

HE ATLANTIC (Dec. 17, 2014), http://www.theatlantic.com/politics/archive/2014/12/

ted-cruz-obamas-new-cuba-policy-will-be-remembered-as-a-tragic-mistake/451260/; Sabrina Sid-

diqui, Marco Rubio: I Will Absolutely Roll Back Obama Cuba Policy,T

HE GUARDIAN (July 10, 2015),

https://www.theguardian.com/us-news/2015/jul/10/marco-rubio-cuba-obama-policy-roll-back.

2

See, e.g., Patrick Oppmann, Raising of Old Glory in Havana Expected to Help Heal Old

Wounds, CNN, http://www.cnn.com/2015/08/14/world/u-s-embassy-reopens-cuba-havana/

(last updated Aug. 14, 2015, 10:04 AM).

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Washington, D.C., which originally opened in 1917, was shuttered in

1961, and renamed the Cuban Interests Section in 1977. In 2016, much

to the frustration of many Cuban Americans, President Obama traveled

to Cuba to meet with its executive, Raul Castro.

3

This was the first visit

by a sitting U.S. President in nearly ninety years.

4

All of this clamor around the relationship between Cuba and the

United States has led many to wonder what this means for the future

relationship between the United States and Cuba.

5

The President has

indicated a desire to normalize relations with the island and to begin to

reverse the devastating effects of isolation. And the President could con-

tinue this normalization process unfettered were it not for the congres-

sional embargo imposed in the 1990s. This archaic embargo hangs like

a dark cloud over the streets of Havana.

Before talks began between Obama and Castro, and before diplomatic

relations were restarted, laws were already beginning to change in both

countries. Market reforms have been under way for some time in Havana,

and the United States has been receptive to those reforms by responding

with a loosening of restrictions on money transfers, travel, and medical

aid, for instance.

6

But this thaw is proceeding at a glacial pace as each

country remains skeptical of the other’s intentions. Additionally, as a new

administration takes office with little clarity on its Cuba policy, there is

great uncertainty about the nature of this relationship in the future.

7

3

See Jonnelle Marte, Cuban Americans Split over Obama’s Trip to Havana,WASH.POST (Mar.

20, 2016), https://www.washingtonpost.com/politics/cuban-americans-are-split-on-the-value-of-

obamas-trip-to-havana/2016/03/20/6b0eda50-ed59-11e5-bc08-3e03a5b41910_story.html?utm_

term5.a20c4e74bc47; Dan Roberts, Obama Lands in Cuba as First US President to Visit in Nearly

a Century,T

HE GUARDIA N (Mar. 21, 2016), https://www.theguardian.com/world/2016/mar/20/

barack-obama-cuba-visit-us-politics-shift-public-opinion-diplomacy.

4

Id.

5

See Charles Rangel, Free Trade with Cuba Now,52HARV.J.ON LEGIS. 327, 328 (2015)

(describing the excitement in Cuba surrounding the thawing U.S.–Cuba relations).

6

See, e.g., Kevin J. Fandl, Foreign Investment in Cuban Real Property: The Case for American

Investors,45R

EAL EST. L.J. 166, 190–92 (2016).

7

Compare COUNCIL ON FOREIGN RELATIONS,Transition 2017: Donald Trump,CFR.ORG, http://www.

cfr.org/campaign2016/donald-trump/on-cuba (last visited Jan. 5, 2017) (asserting Trump’s pre-

vious support for the Cuban embargo and his emerging acceptance of renewed relations) with

COUNCIL ON FOREIGN RELATIONS,Transition 2017: Hillary Clinton,CFR.ORG, http://www.cfr.org/

campaign2016/hillary-clinton/on-cuba (last visited Jan. 5, 2017) (describing Clinton’s desire to

remove the embargo including executive action to do so if necessary).

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This uncertainty and slow-paced reform has not impeded the push by

American investors and politicians to swoop in and take advantage of

opportunities in Cuba. States have sent trade missions to the island to

assess business opportunities.

8

State bar associations have visited the

island to assess the legal environment for potential clients.

9

And busi-

nesses have sent their executives to assess opportunities, even if they

are not yet legal.

10

All of this, however, depends in large part on the

future of the economic embargo against Cuba.

In this article, I argue that the congressional embargo against Cuba

unconstitutionally interferes with the President’s foreign policy powers

as the nation’s diplomat in chief and that, in light of many years of judi-

cial precedent, the President has the constitutional authority to unilater-

ally bypass the congressional embargo to reforge relations with Cuba.

Because economic embargoes are principally utilized as foreign policy

tools, they should be confined to the executive branch, which has long

held that power. Legislative power over international commerce cannot

be construed to include economic sanctions, which are dependent upon

achieving certain defined foreign policy outcomes, such as ceasing

nuclear weapon production, protecting human rights, or facilitating

democratic governance.

The recent steps taken by the U.S. executive to normalize relations

with Cuba have created expectations on both sides of a renewed trade

relationship. Should the U.S. executive be satisfied that Cuba poses no

8

See, e.g., Rebecca Beitsch, What Embargo? State Leaders Rush to Cuba to Forge Trade Ties,

PEWTRUSTS.ORG (Oct. 6, 2015), http://www.pewtrusts.org/en/research-and-analysis/blogs/

stateline/2015/10/06/what-embargo-state-leaders-rush-to-cuba-to-forge-trade-ties (describing

official state trips by politicians in New York, Arkansas, Iowa, and Virginia); Laura Voz-

zella, In Cuba, Gov. McAuliffe Touts His State’s Pork, Wine—and Seaport,W

ASH.POST (Jan. 4,

2016), https://www.washingtonpost.com/local/virginia-politics/on-day-1-in-cuba-gov-mcauliffe-

touts-his-states-pork-wine-and-seaport/2016/01/04/f062e9ca-b2ea-11e5-9388-466021d971de_

story.html?utm_term5.2853d4476ffc.

9

See, e.g., Travel to Cuba with Attorney Colleagues, N.Y.S.B.A., http://www.nysba.org/Cubanotes/

(last visited Jan. 5, 2017) (describing the 2014 New York Bar Association trip to Cuba);

Nevada State Bar Delegation to Cuba, KNCHLAW.COM, http://www.knchlaw.com/en/news-a-

press/in-the-news/item/219-nevada-state-bar-delegation-to-cuba (last visited Jan. 5, 2017);

John G. Locallo, ISBA Goes to Cuba,I

LL. B. J., Feb. 2012, at 68.

10

See, e.g., Felicia McLemore, U.S. Clears Marriott to Engage in Business Development in Cuba,

MARRIOTT NEWS CTR., (Mar. 20, 2016), http://news.marriott.com/2016/03/u-s-clears-

marriott-to-engage-in-business-development-in-cuba/#sthash.7XOsNd3M.dpuf.

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