Legal Commentary

Do the Restrictions On Cuba Travel Violate The Constitution?

By Big Tent Democrat

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.

speaking for me only

Full post as published by TalkLeft on April 14, 2009 (boomark / email).