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Obama can limit the Cuba embargo on his own. But he needs Congress to end it

(Doug Mills-Pool/Getty Images)

It seemed clear from President Obama's statement that he wants to end the embargo against Cuba. But the US-Cuba deal doesn't do that. Why? Because the president doesn't have the power to do that.

At least, not in theory.

Legally, the President cannot unilaterally lift the embargo. Many of the restrictions are codified in legislation that only Congress can change. However, the President does have the authority to make sweeping changes how the embargo works in practice. If he chooses to exercise his full executive authority, there may be little left of the embargo for Congress to repeal.

The details of the new program are still developing, but here are the basics of what the President can do alone — and what he'll need Congress's help with.

What Obama can accomplish through executive action

The President has the power to make significant changes to the embargo and US-Cuba relations without any action from Congress. There are three key avenues for this, and Obama's statements today suggest that he plans to pursue all of them.

First, the President can make sanctions less restrictive in practice by exercising his licensing authority under the current laws. The executive branch has the authority under current law to issue licenses that permit US citizens and corporations to do business with Cuba, travel there, and send money to family members there. The president isn't making licenses for those activities universally available, but he will make them easier to get.

And Obama could, if he wants, make them much easier to get. Lawrence Ward, a partner at the law firm of Dorsey and Whitney who specializes in sanctions compliance law, told me that the President has broad authority to implement various general licenses. So, even if Congress does not act, he could broaden the general licenses available to US individuals and businesses. That would have the substantive effect of easing the embargo, even if, legislatively, it was still in place. For instance, Ward noted that "the President has wide latitude in general licenses authorizing travel to Cuba," even though a full repeal of the travel ban could only be accomplished through legislative action.

Second, the President can remove Cuba from certain types of sanctions by changing its classification as a "State Sponsor of Terrorism." Technically, the Secretary of State makes that determination, not the president. However, the White House said in a statement that it had instructed Secretary Kerry to review whether Cuba should be removed from that list, and submit a report on his conclusions within six months. If Cuba is no longer designated as a sponsor of terrorism, it will no longer be subject to a variety of different sanctions, including restrictions on imports of weapons and "dual-use" technology, and a ban on its government doing business with US citizens and institutions.

Finally, Obama has wide latitude in determining whether to re-establish diplomatic relations with Cuba, regardless of whether Congress grants him permission. The Constitution specifically grants the President the authority to send and receive ambassadors, and the executive's foreign affairs powers are generally interpreted as including the authority to recognize foreign governments.

What Obama would need Congressional Cooperation for

Truly "ending" the embargo would require congressional action. The embargo is supported by several different federal laws, including the 1996 Helms-Burton Act and the Trading With the Enemy Act. The President can't repeal those laws unilaterally — he needs Congress to do it.

Congress also controls the "power of the purse," which may turn out to complicate plans to normalize diplomatic relations with Cuba. Republican Senator Lindsey Graham, the incoming chair of the Senate Appropriations Committee, has already pledged to block all funding for a new embassy in Cuba.

Congressional action on the Cuba embargo is not likely to happen anytime soon. Congress is not currently in session, and won't be back until January, so it would be impossible for there to be legislative action before then.

But the bigger issue is political.  Even when Congress begins its new session in 2015, it probably won't be politically feasible to pass legislation ending the embargo. Republicans, who recently regained control of both the House and the Senate, are unlikely to want to be seen as supporting the President's initiative. Senator Marco Rubio denounced the Cuba deal, calling the president the "worst negotiator that we've had as president since at least Jimmy Carter, and maybe in the history of this country," and accusing his administration of "coddling dictators and tyrants."

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