No subject

Valdes talks about the "new rules" violating the Constitution=2C but since =
the old rules permitted Cuban-Americans to travel to Cuba once every three =
years (rather than once/year as with the new rules)=2C it certainly seems t=
here is nothing "new" here in that the old rules were unconstitutional just=
 as much as the new rules. I have often wondered why no one has challenged =
this in court (or perhaps they have and I just don't know about it). No dou=
bt thousands of plaintiffs could be found. I suppose you have to have appli=
ed for a specific license and been denied so that you have "standing=2C" bu=
t that's no problem. Here are the regulations just for purposes of complete=
ness: http://www.treas.gov/offices/enforcement/ofac/programs/cuba/cuba.pdf


Why Obama's New Cuba Rules Violate the Constitution

By NELSON P. VALD=C9S

Section 621 of the Omnibus Appropriations Act of 2009 authorizes Cuban ance=
stry persons subject to the jurisdiction of the United States to travel to =
Cuba to visit close relatives for an unlimited period of time once every 12=
 months and to engage in travel-related transactions at the "maximum per di=
em rate" in effect at the time of travel. The Cuban Americans will be permi=
tted=2C as well=2C to send money to their relatives. This "initiative" has =
been described as a change in policy toward Cuba.

The guidelines to be implemented by the Office of Foreign Assets Control of=
 the US Treasury Department do not allow non-Cuban ancestry Americans to tr=
avel to the island=2C something that was permissible before June 6=2C 2004.

The new ruling has serious and profound legal consequences. The new rules v=
iolate the equal protection under the law that is supposedly secured for al=
l Americans. In other words=2C advantageous and preferential treatment is p=
rovided to a set of people of a particular national origin [Cubans]. This u=
nusual type of discriminatory advantage [my terminology] based solely on na=
tional origin and national ancestry is one in which the majority of the Ame=
rican population is discriminated while a minority is benefited. In other w=
ords=2C a different standard on the right to travel to Cuba is used for Cub=
an ancestry persons and the rest of the population. One enjoys the right to=
 travel=3B the majority is denied the same right.

Usually=2C discrimination refers to a situation in which a particular minor=
ity group of people is denied rights. In that sense discrimination is negat=
ive. Yet=2C in this particular case=2C discrimination grants people rights =
that others are not permitted to enjoy. Hence=2C affirmative discrimination=
 should not be confused with affirmative action - a policy by which a minor=
ity is given the resources to enjoy the same rights as the majority of the =
population.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the b=
asis of national origin. The ethnic traits of Cubans give them a comparativ=
e advantage that is not accorded to ANY other ethnic group in the United St=
ates. Such a comparative advantage=2C of course=2C implies a negation of eq=
ual protection.

It should be noted that if a US citizens marries a Cuban=2C then he/she can=
 travel to the island as well. Thus=2C the concept of national origin does =
not refer to merely coming from Cuba. And American could obtain the right t=
o travel=2C but only through marriage to a person of Cuban ancestry. Hence=
=2C the right of an American to travel is enhanced when that person marries=
 a person who can claim to be from Cuba=2C or to have an ancestor who was C=
uban.

Thus=2C the US Congress in making an exception of the Cubans' right to trav=
el have violated the Equal Rights Act as well as the Constitutional right t=
o travel that applies to all US citizens.

Although I am a Cuban American and benefit from the new rules=2C I think it=
 is an outrage that such a right is denied to people who do not have a fami=
lial connection with Cuba. Why such a differential policy that limits the r=
ight to travel of so many American citizens? How can any one sustain a fore=
ign policy rooted in a two-tier classification of the people of the United =
States?

Under the new rules=2C permanent resident aliens from a Cuban ancestry in t=
he US will enjoy a right of travel that non Cuban ancestry US citizens do n=
ot have. Hence=2C we are confronted with a clear and obvious violation of t=
he 14th Amendment since non-Cuban ancestry citizens of the United States ar=
e considered members of an inferior or dependent nationality and a non part=
icipant in the enjoyment of a right granted to others. Such inequality trea=
ts the broad majority of American citizens who are not of Cuban ancestry as=
 second class citizens when it comes to the right to travel.

The Supreme Court's equal protection jurisprudence has established that all=
 legislation identifying national origin for differential treatment should =
be considered "suspect" and subject to strict scrutiny. [1] Moreover=2C the=
 right to unconstrained travel is founded on principles of non-discriminati=
on and equal citizenship. That is why=2C the present policy on travel to Cu=
ba and its unequal application should be rejected. Every US citizen and res=
ident alien should have the right and freedom to travel to Cuba=2C if they =
wish to do so.

Notes.

[1] Adarand=2C 515 U.S. at 223=2C 227=3B Clark v. Jeter=2C 486 U.S. 456=2C =
461 (1988)

Nelson P Vald=E9s is Emeritus Professor of Sociology (University of New Mex=
ico) and director of the Cuba-L Project.

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