By Peter Schroeder - 12-17-14 13:58 PM EST
President Obama has significant powers at his disposal to make the U.S. trade and travel embargoes on Cuba meaningless, though action by Congress is required to formally lift the sanctions.
Six separate laws dictate the terms of sanctions on Cuba. They range from the Trading with the Enemy Act of 1917 to the Trade Sanctions Reform and Export Enhancement Act of 2000.
It was President John F. Kennedy who prohibited U.S. exports to Cuba under the Trading with the Enemy Act shortly after Fidel Castro took control of the island nation.
Since then, Congress has moved periodically to toughen the sanctions with legislation, and a series of presidents have also taken executive steps to tighten or loosen the screws on Cuba.
Experts agree that Obama, who with actions on healthcare and immigration has signaled a willingness to test the lengths of executive power, has significant discretion when it comes to U.S. policy toward Cuba.
The six laws are written in a way to give the executive branch latitude in enforcing the law, and regulations are used to implement many of the sanctions.
“The laws were written in such a way that gave the executive branch a good amount of leeway,” said John Kavulich, senior policy adviser for the U.S.-Cuba Trade and Economic Council. “He has a lot of discretion, and it seems as though he’s intending to use it.
Obama on Wednesday announced the U.S. will seek formal diplomatic relations with Cuba, and travel and trade restrictions will be eased.
Neither the trade nor the travel embargo is being lifted, but Obama’s announcement will make it easier to get a license to travel to Cuba and will allow visitors to bring back goods to the United States. Americans also will be able to send up to $8,000 a year to Cubans and will no longer need a specific license to do so.
These changes could provide significant advantages to average Cubans, an argument the White House highlighted on Wednesday. But, as some Republicans argue, they could also help the Castro regime stay in power.
Obama can’t repeal legislation enforcing the embargo without action by Congress.
“Fundamentally, the embargo is law, and without Congress’s backing, the heart of U.S. economic sanctions will remain in place,” said Mark Lagon, an adjunct senior fellow for human rights with the Council on Foreign Relations.
And Kavulich said there are limits to Obama’s actions.
“If the president is now going to expand what people can do, when they go down there, and how many people can go down there, is he essentially ending the embargo? No, there’s still a lot he can’t do,” he said.
But through regulations, Obama can chip away at the effectiveness of the sanctions, making it easier for people to travel or trade with Cuba.
Some experts on Cuba-U.S. relations argue that Obama might have an unimpeded path toward fundamentally changing the embargoes, even if Congress doesn’t lift a finger.
Robert Muse, a Cuban legal expert, argued in a recent article that the president’s ability to alter or rescind the embargo is “essentially unfettered.”
The Trading with the Enemy Act, which provides the basis for the embargo, effectively gives the president the power to put in place and maintain economic sanctions against hostile nations.
Muse contends that, since the implementation of the trade embargo is done by a host of regulations, the president has extremely broad power to do away with them. After all, it was Kennedy who prohibited U.S. exports to Cuba, meaning Obama is “just as free” to rescind it, he wrote.
But Obama could face a number of hurdles with a Republican House and Senate, where some members are warning of a challenge.
Shortly after the administration announced the shift, Sen. Lindsey Graham (R-S.C.) said he would try to bar funds from being used to establish an embassy in Cuba for the first time since the 1960s.
Sen. Marco Rubio (R-Fla.) said he would do everything in his power to block Obama’s efforts, while Sen. Robert Menendez (D-N.J.) said a prisoner trade accompanying the other changes “sets an extremely dangerous precedent.”
And some experts questioned whether Obama was fully acting within a law, suggesting that, as with immigration and healthcare, Obama’s actions on Cuba could face a court challenge.
“Most who were involved in the drafting of the legislation … will believe that some of this isn’t authorized,” said Kavulich.
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