My FIU colleague Jose Gabilondo explores how the Obama Administration might unilaterally end the Cuba embargo, or at least set it up to be challenged by a private party. It is an elegant solution, tied to the connections between legislation and administrative rulemaking.
The standing question he mentions is interesting, but seemingly manageable. If the sole basis for the embargo is regulations enacted solely pursuant to a constitutionally defective statute with no inherent executive discretion and that statute is the only thing legally prohibiting a company from doing business in Cuba, then standing to challenge the statute seems plain. And after Zivotofsky and Bond (interestingly, both Kennedy opinions), it is clear that a private plaintiff can raise pure separation-of-power and federalism arguments in challenging the validity of federal statutes.
Posted by Howard Wasserman on August 31, 2015 at 02:46 PM