Will Immigration Blowback Affect the Chances for Cuba Reforms?

November 21, 2014

We couldn’t watch the President’s immigration reform speech last night without wondering what we could learn from his action – and the overreaction to it. What will happen if Mr. Obama also uses his executive power to make decisive changes in Cuba policy?

Here’s our take.

Get ready for a flood of bogus questions about presidential power. Immigration opponents hit hard at whether President Obama even had the authority to implement the reform program he announced last night. But these arguments were met with slam dunk responses firmly grounded in Supreme Court findings, and the fact that every president since Eisenhower — including Ronald Reagan and George W. Bush —  has used his presidential power to defer the deportations of immigrants a total of 39 times in the intervening 60 years.

The President retains broad authority to change policy toward Cuba. The World War I-era Trading with the Enemy Act, the law on which the Cuba embargo is based, is applied by a discretionary act of the President on an annual basis.  While Congress codified elements of our sanctions policy under Helms-Burton, legal analyses by authorities including Bob Muse (writing here in Americas Quarterly), Hogan Lovells, and others make clear the President and his appointees, such as the Treasury Secretary, can make big changes in the policy based on powers they already have.

For example, President George W. Bush exercised that power by curtailing mercilessly travel by Cuban-Americans to visit their families on the island, putting a damper on legal U.S. farm exports to feed the Cuban people, and authorizing the program to lure Cuban doctors from their foreign postings.

President Obama has also taken executive action on Cuba before. In 2009, he restored the right of the diaspora community to travel to Cuba and provide financial support to their families, and in 2011 he reopened people-to-people travel. Presidents do have the power to act.

There will be phony suggestions about upstaging the Congress. After six years of gridlock that blocked legislation on immigration reform, critics blasted the administration for fouling the chances for a bipartisan law to emerge from Congress.  However, as John Cassidy wrote in the New Yorker, the President is being traditional, not radical, in authorizing changes in the enforcement of immigration laws. As Thomas Mann writes for Brookings, “The cost of such unrelenting opposition and gridlock is that policymaking initiative and power inevitably flow elsewhere – to the executive and the courts.”

Time and again, an aggressive faction within Congress has tried repeatedly to repeal, resist, and delay actions taken within the discretion of the President – such as revising the rules for travels and remittances – or by blocking his nominees for Cuba-related and non-Cuba related foreign policy jobs.  Until the overdue debate begins on repealing Helms-Burton, the President knows that any far-sighted action he takes to modernize Cuba policy he will be taking alone.

He knows and we know what he can and should do: expand travel and remittances from the U.S. to Cuba, stop punishing foreign companies for doing legal business with Cuba’s government, remove Cuba from the list of state sponsors of terror, expand bilateral engagement in areas like the environment, and take the steps required to free Alan Gross.

In his masterful article in Americas Quarterly, “U.S. Presidential Action on Cuba: The New Normalization?,” Robert Muse, a sanctions law specialist, lays out the legal basis for ending most of the counter-productive punishments inflicted on Cuba’s people by our government.  Mr. Obama’s power to act is not in doubt.

Will he do it?  To date the president has made modest but useful changes in the policy. There are ample reasons – substantive and political – for him to do more.  But Cuba has never been a high priority for his administration, and, after the upheavals prompted by the deal that freed Sgt. Bergdahl and his immigration speech, we can imagine that gun-shy White House advisers will counsel Mr. Obama not to do anything big on Cuba now.

Nevertheless, the climate around Cuba reforms has changed for the better this year, and we are also heartened by what Senator Marco Rubio said after his exchange with Tony Blinken at his confirmation hearing: “I am very concerned that President Obama’s nominee to be John Kerry’s deputy at the Department of State passed up several opportunities today to categorically rule out the possibility of unilateral changes to U.S. policy towards Cuba.”

We hope the President goes bold and acts soon.  We don’t expect a nationwide address – or that the networks would cover it if he did (they aired “The Biggest Loser,” “Big Bang Theory,” “Grey’s Anatomy,” and “Bones” instead of his immigration speech).

But bold action by President Obama would enable U.S.-Cuba relations to move forward, he’d get great coverage in the history books, and it’s exactly the right thing for him to do.

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