Does President Obama Need Congress to Lift the Embargo on Cuba? Yes.

It looks like a big showdown is brewing between the President and Congress over Cuba policy (Here comes 2016 presidential candidate Rubio!).  Some legal commentators have argued, however, that President Obama already has the legal authority to lift all or most of the Cuba embargo without any further action by Congress.  Robert Muse, a lawyer whose practice is all about Cuba sanctions law, has stated that the President has very broad discretion to lift most of the restrictions on trade with Cuba without further congressional action. Is he right?

I am not Cuba sanctions law expert, so it is possible I am missing something.  Since the bulk of the Cuba sanctions are found in regulations issued by the Treasury Department’s Office of Foreign Assets Control pursuant to the Trading with the Enemy Act, it would seem like President Obama could indeed lift those sanctions by simply withdrawing those regulations.  The TWEA has never been read to require sanctions, and President Carter lifted similar sanctions on China without Congress in 1979.

On the other hand, Congress has also enacted two Cuba-specific statutes: the Cuban Democracy Act of 1992 (CDA), 22 U.S.C. §§ 6001-6010 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, 22 U.S.C. §§ 6021-6091 (“Helms Burton). The latter appears to codify” the OFAC regulations on Cuba that were initially issued under the TWEA. See Section 102(h) (“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 this Act.”).  Section 204 in turn “authorizes” the President to lift sanctions only after submitting a determination to Congress that a transitional government in Cuba exists and that the lifting of sanctions will contribute “to the stable foundation for democratic government.” There is also the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA), 22 U.S.C. §§ 7201-7211, which imposes further limitations on financial transactions with Cuba and allows no Presidential waiver.

It is worth noting that President Clinton expressed some reservations about the impact of Section 102(h) when he signed the Helms-Burton Act, stating that it”could be read to impose overly rigid constraints on the implementation of our foreign policy.” But Clinton didn’t suggest imposing conditions on when the President could lift sanctions actually violated the Constitution.  Since I assume Congress is the source of the authority to impose sanctions in the first place, it seems reasonable that Congress could impose conditions on when those sanctions can be lifted.  Any argument that those conditions themselves are unconstitutional would be a remarkably aggressive legal argument.

So I don’t think the calls from some quarters for a unilateral lifting of the embargo on Cuba is supportable as a legal matter.  In fact, there are good reasons to doubt the legality of the loosening of sanctions already announced by OFAC.  In any event, there will be lots of legal skirmishing over the next few months on this front. It will be interesting to see if President Obama ever pulls out the “presidentialist” card and tries to argue some of these sanctions laws violate his constitutional authority.  I would doubt it, but then again I never thought he would engage in a separate war in Iraq and Syria with ISIS and change US immigration law without Congress either.