This article was written for the CSIS Americas Program conference, "Getting to Normal: A Legal Pathway for U.S.-Cuba Policy Reform," on Dec. 2, 2014.
Robert has asked me to consider what steps a willing President might take to normalize relations with Cuba on his own authority under the Constitution and existing law without further measures by Congress. As a teacher of U.S. foreign relations law, I know this to be a complex question and a fluid one. Congress and the Executive have been debating the scope of Presidential power in foreign affairs since the first days of the Republic when Hamilton and Madison argued over the legality of Washington’s Neutrality Proclamation in 1793.
While the Congress has important enumerated powers, including control of appropriations, foreign commerce and the power to declare war, as John Marshall famously said, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”i In modern times, as the United States became a world power, the President has become the dominant force in the formulation of U.S. foreign policy, and has frequently made critical decisions on his own authority as Chief Executive and Commander-in-Chief.
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