home rule of law, sanctions Senate Democrat: Obama Administration’s Lawless U.S.-Cuba Policy Sets Up Potential Litigation

Senate Democrat: Obama Administration’s Lawless U.S.-Cuba Policy Sets Up Potential Litigation

One of the biggest threats to liberty is when people think they think, and act, above the law. During the course of the last few years there are, unfortunately, plenty of examples of this throughout the Obama administration. For example, the regulatory superstate is destroying our healthcare system and, in the process, trampling fundamental liberties. Bailing out the automakers. Obama’s executive action on guns. EPA regulations. And the list goes on and on and it bleeds into the foreign affairs arena.

Obama’s cavalier approach to foreign policy and national security matters weakens U.S. security and national interests. Whether failing to follow the advice of intelligence and other national security experts, military intervention in Libya without Congressional consent, failing to enforce U.S. economic sanctions on the Iranian regime, or removing Cuba from the state sponsors of terror list, these and other blunders puts American lives in danger at home and have emboldened the enemies of the United States to do us, and our allies, ill.

In the case of Cuba, Obama, his national security team, set out to defy the Congress to normalize relations with Communist Cuba. Undeterred and in a second-term legacy-building stupor, the Obama administration trampled the law and made up authorities that Congress has not authorized. To mind his political flank, an army of well-funded lobbyists and special interest groups invested millions to whitewash what is happening in Cuba. They supported the Obama approach with advertising and a stealth lobbying campaign in the Congress to secure sanctions-easing support. With Congress unable or unwilling to press forward as an institution to stop this madness, the Obama administration steamrolled ahead.

I’ll skip the legalese, but take this to the bank: under U.S. law, laws that were codified by Congress (i.e., effectively making it impossible to amend through the administrative process – remember the Constitution grants Congress, not the President, the power to legislate) the President has the power to make Cuba sanctions stronger, not weaken them. The LIBERTAD Act created a balancing of equities that requires assistance to the people of Cuba and, at the same time, economic isolation of the regime and its leaders. Yes, it can be done and has been done since the late 1990s and 2000s, successfully, at least up until now.

Engagement with Communist Cuba as outlined by Obama weakens the integrity of the U.S. financial system, tosses an economic and political lifeline to Communist hardliners in Cuba as well as emboldens rogue regimes throughout the Americas and elsewhere in the world. Most importantly, the lawless coddling of the Cuban regime violates U.S. law as well as longstanding policy of supporting the future leaders of a free Cuba. It even invites U.S. companies to, in essence, engage in unlawful transactions in Cuba involving confiscated properties. Congress must rein the regulatory overreach.

The Obama administration has turned this policy and legal equilibrium around: he is helping the regime and hurting the people of Cuba. Everyone else, including U.S. taxpayers, be damned. The administration has ignored Cuban support for international terrorism. They’ve ignored Communist Cuba’s culture of corruption, a system that functions on pay to play (i.e., bribes). They’ve ignored trafficking in stolen properties as well as the Cuban slave labor state. In other words, they’ve ignored and set up regulations that violate U.S. law.

In the political vortex that we sometimes must operate in, especially in this town, these issues are challenging to bring to the surface. This issue is of limited political consequence and there are other, more pressing matters that receive the media coverage. The bottom line is that while some of the regulations issued since the December 17, 2014 policy shift may have been legal, many are not. The regulations issued this week, especially those for travel, the business presence rule, and some of the financial regulations, are clearly inconsistent with U.S. law. And that is why I counsel U.S. and foreign companies under existing laws and regulations, to be extremely careful when engaging in the Cuba market. There is risk in Cuba and, now, even more risk in the United States.

Earlier this week one of the champions of liberty in Cuba, Senator Bob Menendez (D-New Jersey) offered one of the best accounts, to date, of what is at stake in this matter. How the United States resolves the Cuba questions will impact well beyond the island. Sure, the United States is concerned about the people of Cuba, but there are issues here that impact U.S. taxpayers and, indeed, the entire Western Hemisphere. His remarks seem prompted by the latest round of sanctions easing regulations that, in essence, have gutted the sanctions and, as Menendez says, amounts to a “unilateral transfer of the little remaining leverage that the Administration hadn’t given away prior to this week’s announcement.” Then there is this:

I warned officials at the Department of Treasury that these changes come up to the line and in some cases cross it with respect to statutory authority … Their actions are inconsistent with existing statutes and incompatible with the intent of Congress as expressed through those statutes. I should know as I was one of the authors of the “Libertad Act” when I served in the House of Representatives … With these steps, I believe Commerce and Treasury have set the stage for legal action against the Administration. Congress has authorized categories of travel to Cuba, but none of the categories were tourism or commerce-for-commerce’s-sake with the regime.

If Cuba were a nation thousands of miles away, with a billion people, and geo-strategic interests required engagement with the police state, then you may be able to sway folks like me that dancing with the enemy is a necessary evil. Doubtful. But Cuba is just 90 miles away from the United States and is a political and economic basket case. In my book, it remains a terrorist state and a national security problem. In the near term, it is a market of little or no consequence for the United States, one that survives, not thrives. Why should we allow it privileged access to our financial systems and markets?

What we should be doing is following the law and isolating the regime economically; and keep doing what we have successful done for a decade, keep supporting Cuban civil society.

Stay tuned. There is a lot more to come.

2016_03_16 SenMenendez Floor Statement Cuba Regs by Jason I. Poblete

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