Do the Restrictions On Cuba Travel Violate The Constitution?

By Big Tent Democrat, Section Foreign Affairs
Posted on Tue Apr 14, 2009 at 08:53:19 AM EST
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In the wake of President Obama's announced initiatives on Cuba, I've been reading some commentary that the restrictions on travel to Cuba are unconstitutional. As a general matter, travel restrictions imposed by the Executive and the Congress (see the Helms Burton Act (PDF)) are constitutional. See Zemel v. Rusk and Regan v. Wald. In Regan, the court held:

[A]lthough the ban in question effectively prevented travel to Cuba, and thus diminished the right to gather information about foreign countries, no First Amendment rights of the sort that controlled in Kent and Aptheker were implicated by the across-the-board restriction in Zemel. And the Court found the Fifth Amendment right to travel, standing alone, insufficient to overcome the foreign policy justifications supporting the restriction. . . . We see no reason to differentiate between the travel restrictions imposed by the President in the present case and the passport restrictions imposed by the Secretary of State in Zemel. Both have the practical effect of preventing travel to Cuba by most American citizens, and both are justified by weighty concerns of foreign policy.

Thus, a general ban on travel to Cuba is constitutional. The question now being raised (though it is not new) is whether allowing persons with family in Cuba to travel (and presumably also to send money to relatives) to Cuba violates the equal protection clause of the 14th Amendment. I'll discuss that theory on the flip.

In essence, the proponents of this argument would assert that the allowance of persons with family in Cuba to travel to Cuba will prohibiting persons who do not have family in Cuba from traveling to Cuba creates a class of persons - those with no family in Cuba - and that this class of persons are being unconstitutionally discriminated against. I can not conjure a case that has accepted this type of classification.

Perhaps it could be argued that the classifications was national in origin - that is, that it favored Cuban-Americans over non-Cuban Americans. Thus the "suspect class" would be non-Cuban Americans. That would be a pretty broad class. While it is true that the Supreme Court has by rote stated that "that classifications based on alienage . . . are inherently suspect and subject to close scrutiny," and thus struck down state restriction on education, state assistance, professional licensing and the like, that seems a far cry from the case proposed.

The problem is exacerbated by the wide berth the Court has given the government with regard to foreign policy. In addition, the fact the Congress has concurred in these restrictions makes it difficult to imagine a court recognizing the rather amorphous class of "non-Cuban Americans." As noted, generally alienage has been used to restrict privileges, not grant them.

It would be amusing to see the assault on affirmative action thrown in conservative jurists' face on this, but I think they have an easy out - 'its foreign policy.' My view is that this argument would not gain traction.

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Do the Restrictions On Cuba Travel Violate The Constitution? | 27 comments (27 topical)

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Lots of Americans are still traveling there (none / 0) (#1)
by ricosuave on Tue Apr 14, 2009 at 09:05:44 AM EST

I know lots of folks who took flights from Mexico, visiting Cuba and violating the law. Would you like to see the ban enforced? What penalties does the travel ban carry (I think it is fines, but I don't remember)?

Should we selectively enforce it, or should everyone who went be prosecuted? What about the false information they provide on their customs and immigration forms when they return to the US (listing the countries visited)?

It sounds very impractical, and probably could only be applied capriciously as well.

I favor lifting the embargo (none / 0) (#2)
by Big Tent Democrat on Tue Apr 14, 2009 at 09:15:41 AM EST

and the travel restrictions.

My discussion is about the legal question.


I saw your other post (none / 0) (#6)
by ricosuave on Tue Apr 14, 2009 at 09:41:16 AM EST

with unequivocal support for dropping sanctions and I think it was great (should have commented as such).

I guess my question is: can this travel ban be enforced? Or has it ever been enforced? Since it is not enforced in so many cases, shouldn't someone high-profile be willing to test the law--publicly flout it and then challenge it if it is enforced, or challenge any other enforcement if it is not enforced against them? Does capricious enforcement allow a claim of equal protection, or does the government reserve the right to only prosecute the folks it is politically acceptable to prosecute?


IIRC, the Treasury routinely fines people (none / 0) (#8)
by andgarden on Tue Apr 14, 2009 at 09:46:13 AM EST

who make unauthorized trips to Cuba. And the enforcement stepped up during the Bush years.


Squeaky? (none / 0) (#15)
by oculus on Tue Apr 14, 2009 at 11:09:16 AM EST

huh? (none / 0) (#18)
by andgarden on Tue Apr 14, 2009 at 11:15:39 AM EST

My suppositions re Cuba were (none / 0) (#19)
by oculus on Tue Apr 14, 2009 at 11:16:50 AM EST

under siege yesterday!


: Siege? (none / 0) (#22)
by squeaky on Tue Apr 14, 2009 at 11:42:24 AM EST

I accepted the fact that you didn't inhale and never pushed for an admission of guilt. Other than that I was looking for numbers to flesh out your claims.

I interpret the ban as unconstitutional... (none / 0) (#3)
by kdog on Tue Apr 14, 2009 at 09:18:06 AM EST

though I view half the stunts the government pulls as unconstitutional, so thats not saying much. A most liberal interpretation.

As rico said, anybody who wants to go can go on the sly and does go on the sly......its unenforceable, making the ban pointless. We have enough pointless laws, repeal them and lets be a little more honest as a society.

Sadly, when you have to buy a plane (5.00 / 1) (#9)
by inclusiveheart on Tue Apr 14, 2009 at 10:02:44 AM EST

ticket with a credit card and you have phones that basically tell people where you are, it probably isn't all that unenforceable anymore.

I think these kinds of travel restrictions are unconstitutional too - but that's because I think that they pervert the notion that our government is owned by we the people rather than we the people being owned by our government. It is one thing to enforce our laws here in the states and for all of us to agree to live by them, but to be subjected to US law in a foreign territory just because you happen to be an American doesn't sit well with me at all.


Do you think (none / 0) (#10)
by Steve M on Tue Apr 14, 2009 at 11:03:14 AM EST

that our government has the power to enforce a trade embargo against a foreign country as an incident of foreign policy?

It seems to me that it might be hard to prevent commerce with a foreign country if you can't restrict people from traveling there. I mean, I totally disagree with the Cuba embargo, but the intended point is to deny Cuba the benefits of U.S. trade and tourism.

As much as I disagree with the Cuba embargo (and I think the sanctions on Iraq were misguided as well), I think it's a bad idea in the long run for progressives to argue for the removal of alternatives to war from our foreign policy quiver.


I think trade embargos are fine. (none / 0) (#20)
by inclusiveheart on Tue Apr 14, 2009 at 11:28:01 AM EST

I am not saying that I want to go and do big business deals in a place like Cuba, but I would like to have the option of visiting and learning about the place as an individual and only in the context of being a traveler. I would have liked to have seen Cuba before the flood gates are opened. Because let's fact it, once this embargo is lifted, the place is going to be invaded by Americans. I am a traveler at heart. I like to go places and I'd like to be able to see places and experience cultures that are different from my own.


: Indeed, with open tourism from the US (none / 0) (#23)
by sarcastic unnamed one on Tue Apr 14, 2009 at 11:51:59 AM EST

Cuba will likely be quickly "ruined" for the puristas.

Oh and one more thing - (none / 0) (#21)
by inclusiveheart on Tue Apr 14, 2009 at 11:39:46 AM EST

People like me whose only interest is in visiting a place are the ones who don't generally go to places like Cuba - it is the elite class who do and can afford to break embargos - and they are the people who pour meaningful amounts of money into those countries economies and are in many cases there to do business - which of course is the real threat to the effectiveness of an embargo.


Interesting. (none / 0) (#4)
by oculus on Tue Apr 14, 2009 at 09:33:11 AM EST

Grammatical observation: (none / 0) (#5)
by oculus on Tue Apr 14, 2009 at 09:37:48 AM EST

BTD frequently writes "can not." Why doesn't he write "cannot"? Maybe a generational thing. Steve M.? link


My generation (none / 0) (#7)
by ricosuave on Tue Apr 14, 2009 at 09:42:37 AM EST

has access to contractions as well: "can't"

But it has been 20 years since I cracked open my Strunk and White's...


I dunno (none / 0) (#12)
by Steve M on Tue Apr 14, 2009 at 11:05:16 AM EST

are you suggesting there is a generation gap between BTD and myself? Frankly, I could not fail to disagree less. :)


I am inferring you are the chief (none / 0) (#14)
by oculus on Tue Apr 14, 2009 at 11:07:58 AM EST

grammar arbitrator on Talk Left.


: Perhaps I am (5.00 / 1) (#17)
by Steve M on Tue Apr 14, 2009 at 11:13:44 AM EST

but BTD is the chief arbitrator of commentor discipline, so I pick my battles carefully! In this context, please note:
I cannot comment on a matter of grammar <- Obviously false
I can not comment on a matter of grammar <- True!

Always, not just frequently (none / 0) (#24)
by Inspector Gadget on Tue Apr 14, 2009 at 02:16:20 PM EST

My '60s education had an english teacher who loudly let us all know that cannot is never two words. Still makes logical sense to me (cannot is one word, what useage would create a need to break it apart?) and improperly making it two is one of my grammatical pet peeves.


Here's the word from Columbia: (none / 0) (#27)
by oculus on Tue Apr 14, 2009 at 03:49:07 PM EST

: As my mom used to always say to us kids (5.00 / 1) (#28)
by sarcastic unnamed one on Tue Apr 14, 2009 at 05:19:33 PM EST

after we asked "Can I ..." - "You can but you may not."

Amendment (none / 0) (#11)
by rea on Tue Apr 14, 2009 at 11:04:36 AM EST

Oddly Peter Hoekstra and other rigthwingnut congresspeople are promoting a "parental rights" amendment, which would declare the right of parents to raise their children as they choose to be "fundamental," subject only to legislative regulation in service of a governmental interest "of the highest order." I wonder if embargoing Cuba would constitute a governmental interest "of the highest order"? :)

: silliness (none / 0) (#16)
by txpublicdefender on Tue Apr 14, 2009 at 11:11:28 AM EST

Are they going to define "of the highest order," because, as far as I know, that phrase has no legal meaning whatsoever. Last time I looked, the right of parents to direct the upbringing of their children was already held to be a fundamental right. I remember this being reaffirmed several years ago in the "Grandparents Rights" case where SCOTUS struck down a state law that gave grandparents rights to visitation, etc., even over the parents' objections, as long as a court found that visitation would be "in the best interests of the child." SCOTUS said parents have a fundamental right to direct their children's upbringing, including the decision to refuse visitation to anyone other than another parent, and that such a thing could not be overcome merely by a judge substituting his judgment for the parent and deciding something would be in the child's best interest.

no way (none / 0) (#13)
by txpublicdefender on Tue Apr 14, 2009 at 11:07:04 AM EST

Even if the Court were to buy the "suspect class" argument, and analyze it under strict scrutiny, all they have to show is a compelling government interest to which this law/policy is narrowly tailored. The compelling government interest is foreign policy for which the courts give great deference to the other two branches--in this case, all the government would have to say is that it is their sound policy judgment that restricting travel to Cuba, while allowing travel by those who have family there, most advances our foreign policy goals as they relate to Cuba.

I can't imagine any legal challenge to this having a chance.

All I know is (none / 0) (#25)
by lentinel on Tue Apr 14, 2009 at 02:37:31 PM EST

that it seems absurd to me that we tolerate our government forbidding our travel to Cuba.

Obama's move to allow Cuban-Americans to travel there, and not the rest of us, reads like a play for Florida's electoral votes the next time around. It is unprincipled.

Canadians can travel to Cuba. French people can travel to Cuba. But citizens of the leader of the free world? Uh uh. It may or may not be constitutional to prevent us from traveling there, but it feels distinctly un-American and rather dimwitted.

I would like to visit Cuba. I have a friend who obtained special permission (a rigamarole and a half) to go to Cuba and take photographs. The people look gentle. There is something moving about the architecture. I resent not being allowed to travel there for reasons that are rancid hangovers from the Commie hysteria of the 1950's.