When Mike Scharf asked me to discuss Helms-Burton with you, my initial reaction was great distaste. In the past, events have drawn me into Latin America political issues. Once there, I usually have found myself on the least popular of sides. So, I did not relish talking about the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act at all. Then I read its 38 pages and began to view it as a microcosm of constitutional, foreign policy process, and international law problems. It asks that we think again about the distribution of constitutional authorities with respect to the formulation and execution of our foreign policy. It illuminates the U.S. foreign policy process, highlighting the roles and responsibilities of the Executive and Legislative branches. It helps us understand the relationship between the United States and world public order.
I propose to take on each of these topics (briefly). After looking at the constitutional arrangements with respect to foreign policy, I shall summarize the statute's principal provisions, focussing along the way on some of the sections raising constitutional issues. I am not going to spend much time on the legitimacy of the Act as a matter of international law, although I expect that to be a topic of substantial discussion. Nor shall I examine it in terms of existing U.S. treaty obligations.
II. Foreign Affairs and the Constitution
The Constitution is famously terse on foreign policy and national security topics. Provisions such as the foreign commerce clause or the command that the President receive Ambassadors have been cornerstones of a great governmental edifice. They have led to elaborate regulation of our international trade relations and a diplomatic apparatus global in reach. While they encapsulate differences between Legislative and Executive functions, they also contain the germ of conflict. To regulate foreign commerce inevitably is to establish foreign policy positions.
The President's and Congress' respective roles in this area have been debated almost continuously since 1787. Indeed, the justly famous debate between Hamilton and Madison over the President's authority to declare neutrality in 1793 highlighted issues that have been the center of argument ever since. Hamilton argued that "the Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument." The Executive, he wrote, "is the organ of intercourse between the Nation and foreign nations--as the interpreter of the National Treaties, in those cases in which the Judiciary is not competent, that is in the cases between Government and Government--as that Power, which is charged with the Execution of the Laws, of which Treaties form a part--as that Power which is charged with the command and application of the public force." At Jefferson's behest, Madison opposed Hamilton's reasoning. He argued that the President was mainly the agent of Congress. While some Presidents, such as Grant, have shared this view, most, including Madison and Jefferson, did not. Neither has the Supreme Court.
The Court has shown great deference to the Executive as having constitutional prerogatives with respect to U.S. foreign relations in all its aspects. Language of United States v. Curtiss-Wright is exemplary:
In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as the representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. . . . As [John] Marshall said in his great argument of March 7, 1800, in the House of Representatives: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."
Lawyers for the President always quote Curtiss-Wright; lawyers for Congress always pooh-pooh it: the latter deny its relevance, ridicule the Court's historical analysis, and, generally disparage the opinion as mainly dicta. Yet, its perspective intrudes over and over again because as one commentator has put it: "a President could not conduct foreign relations without thereby making foreign policy." As Montesquieu might have said, the Curtiss-WrightFACE="Times"> view corresponds to the nature of things: every government treats foreign affairs as an Executive function. Our legislature probably has more power in this area under the Constitution and exercises it more frequently and intrusively than any other in the world.
The Curtiss-Wright perspective is consistent with Thomas Jefferson's when he was Secretary of State [1790]: "The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly." The President's daily foreign affairs work lends support to the view the President's power, as Justice Sutherland said, are plenary. Therefore, the Court has tended to show great deference to the President and Executive branch more generally in foreign affairs. It even has held that the President's recognition power is exclusive and includes the power to determine public policy regarding nationalization decrees.
This point is important. It does not mean that Congress has no power; on the contrary. Rather, it must be exercised without infringing on the President's constitutional duties and prerogatives. With enough frequency to be taken seriously, the Supreme Court has struck down congressional efforts to use undoubted constitutional power to achieve an unconstitutional objective. We should keep that doctrine in mind in reviewing Helms-Burton's provisions.
III. Helms-Burton in the Main
The Cuban Liberty and Democratic Solidarity (Libertad) Act is long and complex. It contains findings, definitions, and four substantive titles. Of these, the third, granting jurisdiction to the federal courts over suits brought by persons with claims to nationalized or confiscated property in Cuba has attracted the most attention in the United States and abroad. I propose to run through the provisions to provide a sense of the impact of the statute. Title III may be the most famous; it deserves to share the limelight.
First the findings: most address Cuban government policy--lack of market economy, human rights abuses, dictatorship, support for revolution, use of emigration as blackmail, and engagement in narcotics trafficking. Some raise an eyebrow. For example, "Fidel Castro has defined democratic pluralism as 'pluralistic garbage'" (Para. 16). Others show the logic behind the Act. A finding refers to U.N.--presumably Security Council, but not stated--determinations that "massive and systematic violations of human rights may constitute a 'threat to peace' [sic] under Article 39 and [U.N.-] imposed sanctions due to such violations of human rights in the cases of Rhodesia, South Africa, Iraq, and the former Yugoslavia." The authors want to make the case that what the Act does to Cuba is no different from what the United Nations has done to other heinous regimes. The findings lay the predicate for the Act's statement of purpose: to assist the Cuban people to regain their freedom; strengthen international sanctions; protect U.S. security against terrorism, theft, and manipulation of emigrants; encourage free elections; provide a framework for dealing with a transitional government; and protect U.S. nationals against confiscatory takings and wrongful -- "trafficking" in the freighted language of the Act -- in property confiscated by the Castro regime.
To strengthen international sanctions, the Act expresses the sense of Congress that the President seek international agreement to an embargo against Cuba. The President also should make clear that completing a nuclear power facility or engaging in "any further political manipulation of the desire of Cubans to escape that results in mass migration to the United States, will be considered an act of aggression . . . ." As an expression of view, this section raises no constitutional difficulties. Of course, were the President to comply, he would encounter international disagreement on how to deal with Castro's Cuba. Indeed, apart from periodic U.N. votes against Cuba on human rights issues, the international community by and large has not shared (or at least not publicly shared) the U.S. attitude. And, if the international community shared Congress' perspective, then there would be no need for the Act.
More important by far is the enactment into law of all aspects of the U.S. embargo against Cuba, whether or not previously in law or Executive order. The President may lift the embargo only on determining that the Castro government has given way to a transition government. The Act specifies in detail what that government must do prior to allowing the embargo to be lifted. Apart from not including Fidel Castro or Raul Castro, the Cuban government must have legalized all political activity, released all political prisoners and allowed for international human rights organizations to investigate prisons, dissolved the Department of State Security, publicly committed itself to free elections within 18 months with the participation of multiple parties with full access to the media, all to be held under international supervision. In addition, said government must cease interfering with Radio and TV Marti, commit itself and take steps to establish an independent judiciary, respect internationally recognized human rights, labor unions, and more. But I am ahead of myself.
In addition to codifying the embargo, the Act engages in brazen diplomatic micromanagement. Section 113 states that: "The President shall instruct all United States Government officials who engage in official contacts with the Cuban Government to raise on a regular basis the extradition of or rendering to the United States all persons residing in Cuba who are sought by the United States Department of Justice for crimes committed in the United States." (Presumably, this section is directed at Robert Vesco.) The Act directs the Secretary of Treasury to "instruct the United States executive director of each international financial institution to use the voice and vote of the United States to oppose the admission of Cuba as a member of such institution until the President submits a determination . . . that a democratically elected government in Cuba is in power." It requires the Secretary of the Treasury to withhold payments to international financial institutions in amounts equal to loans to Cuba.
I believe that the first two of these provisions certainly are unconstitutional infringements on the President's prerogative and responsibility with respect to the foreign policy and diplomacy of the United States. I do not share the view of those who think Congress can tell the President how to negotiate or what to negotiate any more than Congress can compel the President to take advice from this or that person or in this or that quarter.
But back to the Act. The contrast with precatory language is stark. Thus, section 105 provides that "The President should instruct the United States Permanent representative to the Organization of American States to oppose and vote against any termination of the suspension of the Cuban Government from participation in the Organization . . ." Once a transition government is in place, "the President is encouraged to take steps to support the processing of Cuba's application for membership in any international financial institution, "subject to admission taking effect after a democratically elected government is in place in Cuba.
The Act provides for a reduction in assistance to any country formerly in the Soviet Union in the amount of assistance to Lourdes intelligence facility (a condition the President may waive if he finds it to be "important to the national security" to do so). This provision is one of the few nods in the direction of presidential flexibility.
The lack of room for presidential manoeuvre is striking, as is the lack of respect for the President. It is one of the few laws I have ever seen that refers to a sitting President by name. Other patronizing provisions authorize the President to establish news bureaus on a reciprocal basis while instructing the President to take care that Cuban press may be spies.
I already have given a flavor of Title II, dealing with a post-Castro regime in advance of elections. It not only is immensely detailed, it also continues to infringe on presidential prerogatives with respect to recognition, diplomacy, and foreign policy formation. Flexibility is absent. In addition, Congress tries to pin the President with regard to policy formulation in a way that seems quite dubious from a constitutional point of view. Section 202 for example states that "The President shall consult with the Committee on Ways and Means . . . and shall seek advice from the appropriate advisory committees established under section 135 of the Trade Act of 1974 . . ." Section 203 provides that "The President shall designate a coordinating official who shall be responsible for . . ." "Upon making a determination under subsection (c)(3) that a democratically elected government in Cuba is in power, the President, after consultation with the coordinating official, is authorized to designate a United States-Cuba council." The Title is an extraordinarily detailed direction to the Executive with respect to assistance of all kinds, diplomacy, and claims settlement.
The provisions of Title III have garnered all the public attention. The Title is infinitely more complex than the public reports have suggested. And it provides for treble damages. Alone among the Act's provisions, it allows the President to suspend its coming into force every six months. Title IV prohibits granting visas, except for medical or litigation reasons, to any one, his or her spouse or minor child, who has confiscated, trafficked in, or is corporate officer, principal, or controlling shareholder of a company that has confiscated or trafficked in confiscated property.
All of this adds up to a tour de force. As one of the draftsmen told me, Congress has taken Cuba policy away from the President for the first time. If Castro left power, the first thing that would have to happen, he said, would have to be the repeal of Title II, which would govern U.S. policy after Castro. This admission, which the text bears out but does not provide for, suggests that Congress has gone too far. None can doubt that the Constitution gives Congress great power where money and foreign commerce are concerned. But that power is not unlimited, particularly where its use may affect a coequal branch. (That term, by the way, is not commonly encountered on Capitol Hill.) As the Supreme Court's cases from the nineteenth century forward suggest, whether using the appropriation or other powers, Congress may not transgress the Constitution.
The circumstances of Helms-Burton suggest the President doesn't mind having his power circumscribed with regard to Cuba. At first, the President was going to veto the Bill and therefore did nothing to improve it. The shooting down of the civilian aircraft with American citizens as crew on February 24, 1996, made any change in U.S.-Cuba policy politically impossible given general perceptions of the requirements of presidential election politics. Whether or not his calculation was right that political realities required signature, the Constitution would have been better served, if the President had offered his own alternative. By signing the bill, the President, however, did not correct its constitutional infirmities or waive his right to challenge it or, even, according to the views of prior Justice Departments, to disregard unconstitutional provisions.
IV. Consequences
The conclusion that the Act were better not to have been involves considerations of process and international politics and law. While the Framers understood that neither branch had a monopoly on wisdom and that the people are best served by a dispersal of power, they also understood that an overweening Congress was not something to be welcomed. In the foreign policy area, few congressional regulations have brought real benefit to the United States. Most entail micromanagement without benefit. This example amounts to a legal invasion in a number of directions.
The annual, multi-volume Foreign Relations Law of the United States are full of other examples. The Pressler Amendment has helped poison U.S.-Pakistan relations without hindering Pakistan's nuclear program. A prohibition on assistance to Panama in the Noriega days delayed his disappearance from power and perhaps removed non-military options. Vague laws on asking other governments to do what U.S. officials may not do, seeking diplomatic appointments for congressional staff, requiring burdensome, frequent reports (something also contained in Helms-Burton) wastes time and effort in service to an inside-the-Beltway game of no interest to the nation as a whole. These laws do all a disservice. They breed contempt for law. And for government.
Why then does Congress persist in passing them? Even a Republican Congress with members and staff who served in the Executive branch and who argued against such laws when they did? Partly, it results from impatience with a President who can not be said to have a foreign policy and who studiously ignored Cuba until some American citizens were killed. Partly it reflects frustration with what some see as foreigners taking advantage of the United States. For too long too many governments have said one thing to the United States privately and another publicly. After a while, both the Executive and Legislative branches become frustrated and angry. Bad policy almost always results. One should not ignore the effectiveness of local political pressure groups and the importance of strong emotional involvement with the anti-Castro cause. Some congressional staff are more engaged on this subject than counterparts in the Executive. This fact also is relevant. And, of course, one must remember that the policy process in Washington usually is part of the struggle for political power. The President is seen as weak in foreign affairs, leaving a great target of opportunity to those who would shoot at it.
A wider consequence is the impact abroad. On the one hand, Helms-Burton has had the desired affect. Everyone is focused on Cuba. For once, Europeans are putting pressure on Castro to reform his government in a democratic direction. At the same time, our closest allies and trading partners are furious at the United States. They have joined in condemning U.S. policy at the United Nations. They participate in regular denunciations of Title III of Helms-Burton as violating international law (interestingly, I understand that some of the formerly communist countries of Europe are looking into compensation to the heirs of people whose property was nationalized). Our friends and allies take action to block enforcement. In these ways, they are making use of the international political and legal system to apply counterpressure.
The scene is hardly satisfactory and does not hasten the day when Cuba enjoys a democratic government.
V. Conclusion
Congress has seized control of U.S.-Cuba policy. Few judicial decisions address the question of whether that fact means much of the Act is unconstitutional. Those that do suggest the constitutional problems with the Act are serious. Beyond that, however, is the deplorable effect the Act has on the U.S. foreign policy process and the destructive impact the law has had on U.S. relations with its closest allies.
Congressional efforts to brush these concerns aside reflect perhaps an unwillingness to see the whole. U.S. foreign policy has to reflect a certain degree of realism. We are not so powerful that we can shape our world, protect our interests, achieve our international goals without friends. The Libertad Act just makes it more difficult.
1. Address delivered to International Law Professors of the Boston Area at a dinner hosted by the New England Center for International Law and Policy at the New England School of Law, on January 16, 1997.
2. Nicholas Rostow, B.A., Ph.D. in history, J.D. from Yale University. Associated with Shearman & Sterling, New York, 1982-85. Special Assistant to the Legal Advisor of the United States Department of State, 1985-87. From December 1987 to January 23, 1993, Mr. Rostow served as Special Assistant to the President and Legal Advisor to the National Security Council. Previously, he served as Deputy Legal Advisor to the National Security Council and was Counsel to the President's Special Review Board, which investigated the Iran-Contra Affair. On January 1, 1995, Governor Weld of Massachusetts named Mr. Rostow Executive Director of the Massachusetts Office of International Trade and Investment. The views expressed herein are personal, and not necessarily those of the Governor or the Lieutenant Governor.