The Constitution, Courts, Congress (and Cuba)

Thursday, July 23, 2009
Last week, a federal lawsuit was filed in U.S. District Court in Brooklyn, New York, challenging the constitutionality of U.S. laws that require Americans who travel to Cuba to disclose details about their financial expenditures on the island.

According to the Center for Constitutional Rights, a non-profit legal advocacy group that filed the suit, this law forces travelers to incriminate themselves, therefore making an individual vulnerable to criminal prosecution.

Indirectly, the lawsuit recognizes that "self-incrimination" is simply a vehicle, as the true target of the lawsuit is U.S. foreign policy towards the Castro regime, in particular "efforts to stifle American travel to Cuba."

First of all, it's important to recognize, which this lawsuit does, that the Department of Treasury's jurisdiction under the Trading With the Enemy Act ("TWEA") is to prohibit or regulate commercial or financial "transactions related to travel," not travel per se.

Even if that weren't the case, the U.S. Supreme Court has decided in the past that travel restrictions imposed by the Executive Branch are constitutional.

In Regan v. Wald, citing the precedent set by Zemel v. Rusk, the U.S. Supreme Court held:

"[T]he Court [in Zemel] found the Fifth Amendment right to travel, standing alone, insufficient to overcome the foreign policy justifications supporting the restriction...We see no reason to differentiate between the travel restrictions imposed by the President in the present case and the passport restrictions imposed by the Secretary of State in Zemel. Both have the practical effect of preventing travel to Cuba by most American citizens, and both are justified by weighty concerns of foreign policy."

Despite this ruling, the Center for Constitutional Rights will strenuously argue that the Executive Branch is encroaching upon a constitutional protection against self-incrimination.

But wait, there's another major obstacle.

In 1996 and 2000, U.S. sanctions towards the Castro regime were codified into law by the U.S. Congress.

Following further precedent set by Kent v. Dulles, the U.S. Supreme Court held that the right to travel was grounded in the Constitution, and if this right -- or other similar rights -- are to be regulated, it must be pursuant to the law-making functions of the Congress. This would become known as the "clear statement" principle.

And so on, and so forth, we can then proceed to analyze the court's historic deference to the Executive Branch, not to mention both the Executive Branch and Congress, in foreign policy decisions.

Yet here's the bottom line: there's a fluid legislative process in this country that allows for laws to be enacted and changed.

The U.S. Congress has found that tourism expenditures in Cuba should be prohibited, and while there are a host of categories permissible under law for travel expenditures (ranging from family visits to religious to humanitarian), it remains in the foreign policy interests of the U.S. to limit and account for hard currency that flows to Cuba's totalitarian regime, which uses a disproportionate amount of its income to fund a repressive state security apparatus and remains as one of four nations on the U.S. State Department's state-sponsors of terrorism list.

When Congress feels that it is appropriate for U.S. tourists to double or triple the Castro regime's GDP, so that spring breakers can enjoy Cuba's beaches, while the Cuban people are denied their most fundamental human, civil and political rights, including the ability to enjoy the hotels, stores and litany of services reserved for foreign tourists, then it will change the law.

In the meantime, this suit remains creative lawyering.