Media reports last week trumpeted the “normalization” of US-Cuba relations but in the light of day this widespread euphoria crashes headlong into the reality of the limited running room available to the Obama administration and it supporters in Congress.
From the early 1960’s until the 1990’s, nearly all U.S. economic sanctions aimed at Cuba were imposed by Executive Order under the “Cuban Assets Control Regulations issued by the U.S. Treasury Department. But, with enactment of the Cuban Democracy Act of 1992, and even more so with the “Helms/Burton” legislation in 1996, the economic embargo was strengthened and codified into legal statute, that is law. As a result, the only way the economic embargo on Cuba can be meaningfully lifted is with the advent of Jeffersonian democracy in Cuba or, in lieu of that, Congress repealing or changing the law. Since the Administration’s negotiators appear to have received no concessions on liberalizing Cuban governance, it would seem that Congress must act to repeal some or all of the embargo, or most of what the White House achieved is somewhere between hope and (prospective) change.
Another significant obstacle for the administration is the fact that when the Castro regime came to power, it confiscated and nationalized $1.8 billion of U.S. property, now worth in excess of $7 billion. Nearly six thousand U.S. owners of factories, oil refineries, mines, and other business enterprises owned by U.S. individuals and corporations were seized and many of those property claims remain active. In order to satisfy Helms/Burton, these claims must be resolved.
Meanwhile, reaction on Capitol Hill was swift and predictable. While some Republicans and Democrats supported the White House, well-placed and significant party leaders on both sides denounced the deal with Cuba. Senate Foreign Relations Committee Chairman Robert MenendezRobert (Bob) MenendezDemocrats reject hardball tactics against Senate parliamentarian Biden threatens more sanctions on Ethiopia, Eritrea over Tigray conflict Failed drug vote points to bigger challenges for Democrats MORE (D-N.J.) said that “President Obama's actions have vindicated the brutal behavior of the Cuban government.” House Foreign Affairs Committee Chairman Ed Royce (R-Calif.) said “it is still unclear what steps the Cuban government is taking in return for this change in U.S. policy…. I am very troubled by the lack of engagement with Congress on this serious policy shift.”
The president is chiefly responsible for the conduct of U.S. diplomacy and has, within the bounds of the Helms/Burton law, authority to administer sanctions with some, limited flexibility and licensing authority. And, he has promised to use more of that authority to allow family, educational, and other visits to Cuba by Americans. He can reestablish diplomatic ties with the Cuban government but a U.S. ambassador must be confirmed by the Senate. He can seek to open an embassy in Havana, and there is currently a “U.S. Interests Section” (formally, part of the Swiss embassy, but a separate facility) but must have appropriations in order to operate it, or buy, construct or restore a more robust diplomatic facility there.
In announcing this new policy, the White House suggested that the president is “charting a new course on Cuba.” The bottom line is that while he can chart that new course, sailing the ship of state in this dramatically new direction will require the cooperation of other members of the crew, including the Congress. No orders from the Commander in Chief – Executive or otherwise – can force Congress to agree to this fundamental course change. Given that fact, failing to notify the crew of his plans prior to announcing them, was probably not a propitious way in which to foster a spirit of cooperation with the new Congress.
Peckham is managing director at Prime Policy Group, a DC-based government relations firm.