In September, President Obama signed a presidential memorandum to extend the U.S. embargo against Cuba for another year, as every president since Jimmy Carter has done routinely. John Oliver did a very funny bit about it on his HBO show, which got me thinking. Why does the embargo have to be extended every year and what would happen if a president decided not to renew it?
The surprising answers go all the way back to the embargo's origins. President John F. Kennedy announced the embargo in February 1962, but full implementation of it didn't occur until promulgation of the first Cuban sanctions regulations in July 1963.
The Trading with the Enemy Act of 1917 (TWEA) was one of the foundational statutory authorities for imposing the embargo, and remains so today. The TWEA, the Patriot Act of its time, gave the president extraordinarily broad executive powers in time of war or national emergency.
But when Kennedy imposed the embargo, he did not declare a national emergency with regard to Cuba in order to access TWEA's authorities. Instead, he relied on an ongoing national emergency declared by President Harry Truman in 1950, at the outset of the Korean War- an emergency intended to meet the threat of "world conquest by communist imperialism" and "the increasing menace of the forces of communist aggression."
So the principal legal justification for the embargo against Cuba depended on a national emergency declared nine years before Fidel Castro came to power!
In the mid-1970s, Congress decided that the existence of perpetual national emergencies like Truman's 1950 declaration were a danger to democracy and that the executive authorities available to the president under TWEA were excessive. They amended TWEA to limit the president's extraordinary powers to war time only and passed a new law, the International Emergency Economic Powers Act (IEEPA), to cover new national emergencies, albeit with much stricter Congressional oversight. Although Congress didn't actually terminate the old emergencies, the National Emergencies Act of 1976 rendered them toothless by stripping the president of his power to invoke the authority of those old emergencies to impose new sanctions the way Kennedy had done on Cuba.
However, Congress also grand-fathered in the economic sanctions already in place- including the Cuba sanctions- along with the president's authority under TWEA to maintain or modify them. The only requirement: that the president renew his authority annually. So every year since 1978, successive presidents have signed determinations keeping alive the powers they have under TWEA to impose economic sanctions on Cuba.
Harry Truman's moribund Korean War national emergency still haunts U.S.-Cuban relations, zombie-like, 64 years after it was signed and 24 years after the end of the Cold War.
What would happen if the president acknowledged the obvious- that the conditions prompting Truman's national emergency disappeared long ago? What if the president simply failed to renew the TWEA authorities that stem from that emergency?
No, the embargo against Cuba would not go away. Although TWEA was its original statutory foundation, the Cuban Liberty and Democratic Solidarity Act of 1996 (aka Helms-Burton) wrote the embargo into law by stipulating that the economic sanctions in place at the time of passage would remain in place until Cuba underwent regime change. And other laws authorize various bits and pieces of the embargo: for example, the Foreign Assistance Act of 1961 (§620(a)) gives the president the authority to impose a trade embargo on Cuba; the Cuban Democracy Act of 1992 prohibits trade with Cuba by foreign subsidiaries of U.S. companies; and the Trade Sanctions Reform and Export Enhancement Act of 2000 prohibits tourist travel (§7209(b)). So the embargo would continue even without TWEA.
But the president's legal authority to change Cuba sanctions would become far more tenuous. The TWEA gives the president virtually unlimited licensing authority to tighten or loosen sanctions, authority that would disappear if the president failed to renew it. When Helms-Burton codified the Cuban sanctions regulations, it also codified the president's authority to license exceptions to the embargo, thereby loosening sanctions, since the regulations specifically refer to that authority (§515.201). But absent some statutory authority other than TWEA, it is not clear that the president could tighten sanctions.
A president who tried would be vulnerable to legal challenge by anyone sustaining damage as a result. In Regan v. Wald, the Supreme Court found that President Ronald Reagan was legally justified in tightening restrictions on travel to Cuba because of the broad authorities he retained under TWEA. Without those authorities, he would have had no grounds for imposing the new restrictions unless he declared a new national emergency with regard to Cuba under IEEPA .
Therein lies the real reason that every president since Jimmy Carter has renewed the legal authorities provided by TWEA: no president, Democrat or Republican, wants to give up their executive discretion or be forced to declare- and justify- a new national emergency.
If Congressional Republicans are really as upset with President Obama's use of executive powers as they claim, they can strike a blow against the Imperial Presidency by urging him not to renew the TWEA authority underpinning the embargo against Cuba. But don't hold your breath.
William M. LeoGrande is coauthor with Peter Kornbluh of Back Channel to Cuba; The Hidden History of Negotiations between Washington and Havana (University of North Carolina Press, 2014).