Nicholas Maliska is a research intern with the New America Foundation/U.S.-Cuba Policy Initiative. This post originally appeared at The Havana Note.
With President Obama’s nomination of Elena Kagan to replace Justice John Paul Stevens, the U.S. Supreme Court is changing (although this change should not significantly alter the ideological balance of the Court). While the Judiciary is usually considered the least pertinent of our government’s three branches to foreign policy issues, the Supreme Court does get to weigh in on international issues from time. Cuba is no exception, and over the nearly fifty years that the U.S. embargo on Cuba has existed, the Supreme Court has heard several cases that challenged the Constitutionality of the travel ban on Cuba.
Zemel v. Rusk was the first case heard by the Supreme Court that challenged the travel ban to Cuba. Previously, the Court had ruled in Kent v. Douglas that the freedom to travel is a right protected by the Fifth Amendment, so after several denied requests to travel to Cuba as a tourist, one citizen challenged the travel ban to Cuba. The proceedings took place in 1965 just four years after the travel ban was imposed on Cuba in 1961, and in a 6-3 decision, the majority ruled that the State Department did have the authority to impose such a ban and that the ban is Constitutional.
The Supreme Court again heard a case (Regan v. Wald) challenging the travel ban or more specifically the restrictions on travel-related transactions with Cuba in 1984 after the Reagan Administration had re-imposed the travel ban (which had been eased under the Carter Administration). In a 5-4 decision, the Supreme Court affirmed the President’s authority to issue travel bans in the interest of national security, although they might infringe upon Americans’ Constitutional rights to travel and move freely.
The United States, Cuba, and the Supreme Court have all undergone significant changes since that 1984 ruling. The Cold War is over and Cuba is no longer a security threat (and thus the original rationale for the travel ban has ended). Meanwhile, with Justice Stevens’ retirement, there will no longer be any current Justices on the Supreme Court that were serving at the time of the 1984 ruling.
In addition to the original concerns of those who opposed the travel ban, a new twist has also developed in the travel ban since the 1984 ruling. Now, the travel ban is not a general ban on all Americans, but rather, the ban discriminates against ordinary Americans and allows Cuban-Americans with family in Cuba to freely travel to the island. Opponents cite the Equal Protection Clause of the Fourteenth Amendment, which holds that no state shall “deny to any persons in its jurisdiction the equal protection of the laws” and ask how one category of Americans is permitted the right to travel while others are denied it.
I am by no means a Constitutional Law scholar and explaining the legal nitty gritty of this is out of my league. However, the famous words of Justice Stewart come to mind: “I can’t define pornography, but I know it when I see it.” Similarly, I do not know how legal minds define discrimination, but I know it when I see it.
— Nicholas Maliska