Summary: The Center for International Policy and Global Americans urge President Barack Obama to renew the Trading with the Enemy Act for Cuba. Surprised? According to a white paper by Robert Muse, the President’s authority to make changes to the embargo depend on renewal of the Act. Failure to do so will not only tie the executive’s hands to make further changes but also end the important people-to-people exchanges. Read the full analysis below.
To keep alive his embargo authority over Cuba, President Obama must annually renew the Trading with the Enemy Act (TWEA). Since he was elected in 2008 Obama has done that, as has every president since Jimmy Carter for thirty-six years. Before September 14th[1] of this year Obama must once again renew “the exercise of certain authorities” under TWEA by declaring that it is in the “national interest” that he do so. While it may seem counter-intuitive given the climate of normalization with Cuba, failure to renew TWEA will vacate the executive’s authority to make changes to the embargo and could end the current people-to-people program under which hundreds of thousands of U.S. citizens under university, museum and other programs have traveled to Cuba.
To put it clearly, if the President wants to preserve his authority to modify the embargo on Cuba and maintain his recent reforms, he needs to renew his authority over the embargo by renewing TWEA.
Recently, a number of observers have argued against Obama renewing TWEA, arguing that he should let the statute lapse as an expression of his policy of rejection of the embargo on Cuba.[2] The argument, though, is based on symbolism and ignores the legal realities of the President’s authority over the embargo provided under TWEA.
Failure to renew “the exercise of certain authorities” under TWEA would likely nullify every act taken to modify the embargo since 1996 when the Helms-Burton Act froze the Cuban Asset Control Regulations (CACR) in place exactly as they read on March 1st of that year.[3]
Background:
The Trading with the Enemy Act of 1917[4] provides discretionary authority to the President to maintain an embargo on Cuba.[5] It was this authority that President Kennedy used in establishing the comprehensive trade embargo on Cuba that exists today and is found in the specific provisions of the Cuban Assets Control Regulations, as codified (i.e. frozen in place) by Congress.[6]
The International Emergency Economic Powers Act of 1977 (“IEEPA”) replaced TWEA. Section 101(b) of that act is a “grandfathering” provision that allows the President to continue the TWEA-based embargo on Cuba (i.e. the CACR) on a year-to-year basis.[7] Should a president fail to renew TWEA, the statute will die. With it will die the president’s executive authority to relax and modify–through OFAC licenses and otherwise, and the CACR elements of that embargo will automatically revert, word-for-word, to the form they had on March 1, 1996.
If that should happen the Helms-Burton Act, which codified the embargo into law requiring Congressional action to lift it, will supersede presidential discretion and freeze in place the Cuban Asset Control Regulations that were in effect on March 1, 1996. Without TWEA, the stringent Helms-Burton regulations will be elevated to the level of a federal statute, but a statute that grants the president no authority to modify. As a result all modifications of the embargo since 1996 would be nullified, including such things as President Obama’s recent conversion of all travel to Cuba to general licenses–but worse, people-to-people travel would cease to exist. The people-to-people program that was instituted by President Clinton in 1999 has, under President Obama, authorized several hundred thousand Americans to travel to Cuba with organizations like National Geographic, the Smithsonian Institution, The Museum of Natural History and dozens of other organizations, including universities. There is no provision authorizing people-to-people travel in those 1996 regulations, nor for increased Cuban-American travel and remittances, nor for exports to Cuba licensed by Obama on January 15th of this year among many other adjustments that have occurred in the past 6 years.
The embargo is composed of several laws, but the Trading with the Enemy Act is preeminent among them. Not only is it, by an incredible margin, the chief enabling statute of the embargo, it’s the only one that grants executive authority in the president to relax the embargo on Cuba that was codified in 1996.[8] This authoritymust be renewed before September 14th of this year.
When the TWEA renewal is placed on the President’s desk we strongly urge him to renew it. The author and the collaborating organizations, Center for International Policy and Global Americans, say this in full support of the President’s past modifications of the embargo under his executive authority and the hope that such openings will continue.
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Robert Muse is a lawyer in Washington, D.C. with substantial experience in U.S. laws regarding Cuba. He has written widely and testified on those laws before the Senate and House of Representatives; the Canadian House of Commons; the International Trade Commission and the External Economic Relations Committee of the European Parliament (Brussels).
Global Americans is a new non-profit research organization dedicated to original, rigorous research to promote discussion of the Americas’ role in the world and progressive, democratic change and inclusion in the region. It also maintains a website (www.latinamericagoesglobal.org) to provide for the opinions and analysis of scholars and activists. Christopher Sabatini is the Executive Director.
The Center for International Policy is a non-profit research and advocacy organization based in Washington, D.C. that promotes transparency and accountability in U.S. foreign policy and global relations. CIP’s Cuba Project seeks to strengthen diplomatic relations between Cuba and the United States, liberalize travel to Cuba for American citizens, protect Cuba’s environment, and promote economic growth for the Cuban people.
“(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 [i.e. the CACR], shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of this Act.”
Briefly, Section 204 requires that Cuba meet a number of conditions before the embargo may be lifted, including such things as neither Raul nor Fidel may be in the government, elections must be held, and many other things.
