President’s Authority Under Federal Statutes and the Cuban Assets Control Regulations

July 2014Articles Business Insights: Cuba

Hillary Clinton’s Petition To Lift the Embargo

In her new book, former Secretary of State Hillary Rodham Clinton says she pushed President Barack Obama to lift or ease the decades-long U.S. embargo on Cuba because it was no longer useful to American interests or promoting change on the communist island.

“Since 1960, the United States had maintained an embargo against the island in hopes of squeezing Castro from power, but it only succeeded in giving him a foil to blame for Cuba’s economic woes,” she writes. She says her husband, former President Bill Clinton, tried to improve relations with Cuba in the 1990s, but the Castro government did not respond to the easing in some sanctions. Nonetheless, President Obama was determined to continue the effort, she writes.

“The steps that Obama took, including allowing more travel to the island and increasing the amount of money Cuban-Americans can send back to the island, have had a positive effect,” she writes.

Presidential Authority

The President has certain legal authority to lift the embargo under the Trading With the Enemy Act (TWEA) and the Foreign Assistance Act (FAA). Under those statutes, the President could lift the embargo unilaterally, at any time and without any preconditions, and would not be required to consult Congress to do so. However, under the Cuban Democracy Act and the Helms-Burton Act, the President has to confirm that a “transition” government is in power in Cuba and the Cuban government has taken appropriate steps under international law standards to provide restitution or compensation to U.S. citizens whose property was confiscated by the Castro government. In addition to relaxing the embargo, the existing prohibitions against U.S. economic aid to Cuba would then be dropped.

Furthermore, the Helms-Burton Act directs the President to take steps to bring a democratic Cuba within the coverage of some U.S.-sponsored economic aid programs. The reach of that legislation, however, is incomplete and in some areas obsolete, and needs to be supplemented by specific legislation that covers the various aid programs in effect at the time the embargo is lifted, so that U.S. government agencies will be prepared to take expeditious action to admit Cuba into the programs.

Meanwhile, President Obama maintains broad authority and discretion to significantly ease specific provisions of the Cuba sanctions regime in support of particular U.S. foreign policy objectives recognized by Congress and supported by the Cuban-American community. The latest Cuba Poll, conducted by Florida International University’s Cuba Research Center, indicates a majority, 52 percent, of all respondents oppose continuing the embargo. The poll also found:

  • 58 percent support alternatives to the embargo in exchange for other policies that continue to exert pressure on the Cuban government for change;
  • 68 percent favor diplomatic relations;
  • 69 percent support lifting travel restrictions so that Americans can travel to Cuba; and
  • 71 percent expressed support for continuing “people-to-people” travel and the contact that it makes possible, sending a high approval to President Obama’s policies to Cuba.

President Obama could also take the following initiatives to further ease the embargo without further action by Congress using his licensing power granted by federal statutes and established by the Cuban Assets Control Regulations:

  • Establishing “general licenses” for existing categories of travel to Cuba that are currently authorized only by specific licenses.
  • Expanding non-family remittances to Cuba.
  • Permitting microcredit programs to farmers and entrepreneurs through private companies and NGOs.
  • Permitting family financing and investing in family-owned small and midsize companies, cooperatives and family residences in Cuba, but subject to the statutory conditions regarding “trafficking with confiscated property.”
  • Permitting payment for authorized transactions with Cuba (except sales of agricultural commodities or products) to be financed through letters of credit or other financing arrangements issued, confirmed or advised by U.S. financial institutions (but subject to statutory restrictions on the extension of credit for transactions involving “confiscated property”).
  • Creating a federal commission integrated by the Treasury and State Departments with the assistance of the Federal Claims Settlement Commission (FCSC) to negotiate with the Cuban government a settlement of the U.S. certified claims against the Republic of Cuba.
  • Authorizing imports from Cuba of certain goods and services produced by private and non-state ewnterprises.
  • Expanding the availability of existing license exceptions to cover additional categories of exports and easing conditions and limitations on the use of those exceptions.
  • Increasing the frequency and dollar amount of gift parcels and family remittances.
  • Granting general licenses to ferries and vessels to transport “licensed” passengers and for entry of vessels engaged in trade with Cuba.
  • Authorizing travelers to use credit cards while in Cuba.
  • Permitting Cuba’s participation in the International Monetary Fund (IMF), World Bank and Inter-American Bank.

The President should also establish an advisory group to help identify the problems that will be posed by Cuba’s transition to a free-market democratic society, develop a unified strategy to assist Cuba in resolving those problems, and draft the necessary implementing laws and regulations. Those interested in a smooth transition process should be represented and heavily involved in these efforts.

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