Travel to Cuba & Executive Power

[Ed Darrell]

In a message dated 97-08-26 09:52:07 EDT, destro at LAW.CUA.EDU writes:

<<      1) how, if at all, does the First Amendment apply to the President's
      power to conduct foreign affairs? (i.e. Is this a political question
      left to the President under Article II?).

There is a travel embargo to Cuba, backed now by a law, as I recall.  The
executive has some limited authority to permit exceptions.  If this
particular kind of travel is NOT embargoed by Congress, then I assume an
executive order exists.  We ought to figure that out before we go too much
farther.

I would argue that anyone has a First Amendment right to say the President's
policy is in error; that right does not extend to travel to a nation to which
travel is proscribed for military reasons.  Political reasons might leave
some ground for  dispute.

      2) assuming that it *does* apply (and there is some case law to that
      effect), wouldn't the search for "secular purpose" require an inquiry
      into whatever prospective "purposes" the Executive might have to build
      on the exemption?

If the policy is that travel is not allowed, then the Lemon test would apply
to the embargo itself.  I would argue that permitting an exception need not
have a valid secular purpose beyond honoring the First Amendment free
exercise rights of the citizens who travel.  There is a prima facie valid
secular reason behind the ban on travel -- the executive's granting an
exception is not required but can't be stopped on religious grounds.  Today
it's the Pope in Cuba; tomorrow it may be the Dalai Lama in Tibet or Vietnam,
or the President of the Mormon Church somewhere in Latin America.  For those
religions which have high holy people, exceptions can be granted.  Need we go
further?  Baptists and Disciples of Christ don't have good grounds to argue
that such exceptions are unfair, since they use a congregational style of
church management instead.  They get to see the head of their church weekly
if they want -- I just don't see a strong reason for a challenge.

      3) is the decision on the 2d "prong" of Lemon ("advance or inhibit")
      to be judged on a case-by-case basis, or in a broader sense?

Case by case.

      4) assuming that the action *is* challenged in court, and that the
      parties have standing to assert a violation, and that the plaintiffs
      are successful, what's the remedy?  An injunction directed to the
      President (or the State Department)?  Mandating or forbidding what?  >>

Pilgrims denied an exception to travel for religious reasons might have
standing.  This requires greater depth of thought than I have at the moment.
 A challenge would call into question the entire ban on travel most likely --
a writ of mandamus wouldn't have any place to go, I don't think.  I don't
think there's a remedy -- but am willing to be surprised and persuaded
otherwise.

Ed Darrell
Duncanville, Texas