A Timely Reminder: On the Codification of U.S. Sanctions Towards Cuba

Wednesday, August 19, 2015
Remarks by former senior White House official, Daniel W. Fisk, at a conference on the Cuban embargo hosted last year by The University of Georgia's School of Law:

Executive and Legislative Pathways to Removing Sanctions

Good morning. I want to thank the University of Georgia School of Law and its Dean Rusk Center for the invitation to participate and for the hospitality shown in my first, but hopefully not my last, visit to Athens.

Having had the unique experience and perspective of direct involvement in both the Executive and Legislative branches in the development and implementation of US policy towards Cuba, I will speak with a first-hand understanding of and respect for the role and prerogatives of the Congress and the Executive – the two political branches that are central to any discussion on the implementation or removal of sanctions.

The topic of “pathways to removing sanctions” is procedural in nature -- as opposed to a policy discussion about the advisability of sanctions. When approaching the topic of “removing sanctions,” it is essential to consider the pathways used to institute them and the impact that this has on any effort to remove sanctions.

I agree with the notion that the Constitution creates an invitation to struggle between the two political branches. The U.S. Constitution does not contain the phrases “foreign affairs” or “national security.” Instead, as this audience knows, the Constitution provides specific powers to each political branch.

Congress, under Article I, Sections 8 and 9, has the power, amongst others, to provide for the common defence, regulate foreign commerce, to make all laws necessary and proper for carrying into execution its powers, and to appropriate funds. The President, under Article II, is vested with the executive power and the Commander-in-Chief power, and shares power with the Senate on treaties and the making of certain appointments, including the appointment of Ambassadors.

Beyond the constitutional text, there are considerations of practice, which are more often seen in presidential assertions of power under a general “foreign affairs” justification. And as we have seen, especially since the presidency of Franklin Roosevelt, the President’s interpretation of his power is quite broad -- almost limitless in his mind and those of his advisors -- when taking actions in the name of “foreign relations” or “national security.”

The text of the Constitution and historical practice are factors in any determination of which branch has authority in the foreign affairs arena. This is the case whether the issue is U.S. policy towards Cuba or policy towards another country or international issue. And we know that this struggle between the Executive and Congress over who has the authority to set U.S. foreign policy is as old as the Republic, extending back to the time of our first president named George, not simply having emerged with the most recent president of that name or his successor, President Obama.

In addition to the constitutional text and practice, there are delegations of authority from the Congress to the President contained in statute. In my view, any discussion of sanctions has to take into account the power of Congress to regulate foreign commerce and the delegation of any of that authority to the Executive.

I am struck by how often this congressional power over international economic relationships is ignored in discussions about sanctions, and not just by Presidents.

The President’s authority to impose, modify or remove sanctions is a delegated authority and Congress retains the power to affirm, modify or revoke that delegated authority.

It is the modification of that delegated authority that Congress has pursued in the case of the economic relationship between the United States and Cuba, most visibly through the Cuban Democracy Act, the LIBERTAD Act, and the Trade Sanctions Reform and Export Enhancement Act, as well as through various appropriations bills over the recent past.

The Cuban Democracy Act (CDA), introduced by Congressman Robert Torricelli, Democrat of New Jersey, reflected congressional frustration with the Republican George H.W. Bush Administration’s policy towards Cuba, especially in the context of the political changes in Eastern Europe and the end of the Castro regime’s patron, the Soviet Union.

That Bush Administration well understood what this assertion of congressional authority meant and initially took steps to stop the legislation. However, the Executive then made the calculation that it had no choice except to agree to the legislation, which was signed into law in October 1992.

Three years later, with a different party in control of the Congress and the Executive, Congress again asserted its role over the U.S. economic relationship with Cuba. The Executive again sought to protect what it considered its prerogatives and initially opposed the legislation. A confluence of events, including the brutal shoot-down by Cuban forces of civilian aircraft in international airspace on the apparent orders of Raul Castro, convinced the Executive to accept and sign into law the LIBERTAD Act.

Having had responsibility as the primary staff member on the Senate Foreign Relations Committee for the drafting of and legislative strategy for the Cuban Liberty and Democratic Solidarity Act of 1996, more commonly known as the LIBERTAD or Helms-Burton Act, it has been interesting to observe the evolution in the attention given to the provisions of the Act over the years.

At the time, the most controversial provisions were those creating a right of action for U.S. nationals holding a claim to expropriated property in Cuba against third parties benefiting from those properties. Adding to this controversy was the bill’s creation of a statutory basis for excluding from the United States any alien involved in the expropriation of property or who benefited from property to which a U.S. national held a claim. These provisions, which receive relatively little attention today, were the principal focus of the Executive’s concerns about the legislation.

Administration lawyers, fully empowered to make decisions on behalf of the Executive, were present and active during the House-Senate conference committee deliberations on the final text of the bill. Out of the conference committee came revised wording that addressed the Executive’s concerns about the provisions on expropriated properties in Cuba. The President wanted authority to waive the Title III right of action provision and he received that authority from the Congress.

In exchange, Congress wanted the economic restrictions in place as of March 1, 1996 codified. The Executive Branch representatives – again, empowered to speak for and make commitments on behalf of the Executive – agreed to that deal. Based on that, Congress revised the legislation, providing a waiver to the President on Title III.

The Executive Branch knew what it was getting when the bill hit the President’s desk for signature.

With this review of what happened, it is instructive to give some attention to the President’s signing statement on the LIBERTAD Act. The President, by the way, was President Bill Clinton.

In the Statement by the President issued on March 12, 1996, the President made the standard refrain that “consistent with the Constitution, I will interpret the Act as not derogating from the President’s authority to conduct foreign policy.” Immediately following this statement is the enumeration of six sections or subsections of the Act that he will “construe” as “precatory.”

The so-called Codification provision is not one of these six provisions.

The Codification provision is referenced in the context of the President being able “to respond effectively to rapid change in Cuba” and his concern that that section “could be read to impose overly rigid constraints on the implementation of our foreign policy.” With these words, one would think that the President would treat the Codification provision as “precatory” as well. He does not.

Instead, the President states that he “will continue to work with the Congress to obtain the flexibility needed if the United States is to be in a position to advance our shared interest in a rapid and peaceful transition to democracy in Cuba.”

The phrasing is artful but reflected recognition of what those provisions meant for the President’s authority.

The LIBERTAD Act is not simply a codification of the President’s authority to manipulate the embargo. The Act codified the restrictions in place at the time of enactment (March 12, 1996).

In very straight forward wording, the Act states: “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 remain in effect upon the enactment of this Act, and shall remain in effect, subject to…” the provisions relating to a presidential determination that a transition or democratically elected government in Cuba is in power.

The Act does not speak of codifying the President’s authority under the Code of Federal Regulations; it speaks clearly to the “restrictions” in place as of a date-certain, March 1, 1996.

The Executive Branch understood congressional intent, understood the plain language of the Act, and understood what it, in fact, effected.

Further, the LIBERTAD Act met the constitutional test of bicameralism and presentment: it was approved by both chambers and presented to the President for his approval or veto. The President signed it with full knowledge of its provisions. Again, he got what he wanted: a Title III waiver in return for what Congress wanted: codification of the restrictions that constitute the embargo.

As for the President’s concerns about his ability to respond effectively to rapid changes in Cuba, Title II of the LIBERTAD Act sets out the requirements for and parameters of assistance to Cuba. This title of the Act does not preclude the President from submitting proposed legislation to Congress to change U.S. policy. The Executive retains the ability to pursue such an initiative.

Further, in developing the LIBERTAD Act, the Congress intentionally did not restrict or condition certain other authorities which contain “notwithstanding” language or authorities which allow the President latitude to respond in extraordinary circumstances.

Depending upon the facts of the situation – and the President/Executive has the ability to make a first determination as to what those “facts” are – there are authorities for Executive action in the Foreign Assistance Act.

That Act contains a number of what are considered “extraordinary authorities” – authorities that give the Executive the ability to deal with “unanticipated contingencies,” in the words of the statute.

After enactment of the LIBERTAD Act, the Executive created an interpretation that the Act really only codified the President’s authority to promulgate and modify the Cuban Asset Control Regulations. This Executive Branch interpretation is based on what some in Congress see as willful blindness to the agreement reached with Congress during the House-Senate conference committee. The Executive Branch rests this interpretation, in part, on an assertion of the President’s inherent foreign affairs powers and the Trading With the Enemy Act.

It is under this legal argument that the Clinton, George W. Bush and Obama Administrations have adjusted elements of U.S. policy towards Cuba, depending on their respective policy assessment of how the United States can best help the Cuban people transition to a society respectful of human rights and based on the consent of the governed.

As noted, I also have seen sanctions implementation from the other end of Pennsylvania Ave, from the Executive Branch.

The George W. Bush (“Bush 43”) Administration modified the CACR during its tenure. In 2004, the administration tightened restrictions in a number of areas, including policies on travel and remittances to Cuba. These actions were deemed consistent with the congressional intent underlying the LIBERTAD Act’s codification provisions.

As Congress noted in the Conference Report accompanying the LIBERTAD Act:

"It is not the intent of this section to prohibit executive branch agencies from amending existing regulations to tighten economic sanctions on Cuba or to implement the provisions of this Act."

Another initiative pursued by the George W. Bush Administration was the promulgation, in 2008, of regulations licensing the provision of selected information technologies, especially involving telecommunications, to the Cuban people. Again, this action was consistent with statutory mandates. Telecommunications have long had a carve-out in embargo policies.

The Cuban Democracy Act (sec.1705(e)(1)) specifically authorized telecommunications services, including authorizing the licensing of payments to Cuba as a result of those services. The LIBERTAD Act (sec. 102(g)) modified the CDA by creating a statutory prohibition on U.S. investment in Cuba’s domestic telecommunications sector.

Both the George W. Bush and Obama Administrations based their decisions to increase the flow of communications technology to the Cuban people, including mobile and cellular devices, on the CDA and LIBERTAD provisions of law.

As this brief review makes clear, if there is one country where Congress has spoken -- and spoken repeatedly – regarding delegated authority over foreign commerce, it is Cuba. And the pathway to removing sanctions is with and through the Congress.

Thank you.