Why Obama’s New Cuba Rules Violate the Constitution
Section 621 of the Omnibus Appropriations Act of 2009 authorizes Cuban ancestry 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 diem rate" in effect at the time of travel. The Cuban Americans will be permitted, as well, 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 travel to the island, something that was permissible before June 6, 2004.
The new ruling has serious and profound legal consequences. The new rules violate the equal protection under the law that is supposedly secured for all Americans. In other words, advantageous and preferential treatment is provided to a set of people of a particular national origin [Cubans]. This unusual type of discriminatory advantage [my terminology] based solely on national origin and national ancestry is one in which the majority of the American population is discriminated while a minority is benefited. In other words, a different standard on the right to travel to Cuba is used for Cuban ancestry persons and the rest of the population. One enjoys the right to travel; the majority is denied the same right.
Usually, discrimination refers to a situation in which a particular minority group of people is denied rights. In that sense discrimination is negative. Yet, in this particular case, discrimination grants people rights that others are not permitted to enjoy. Hence, affirmative discrimination should not be confused with affirmative action – a policy by which a minority 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 basis of national origin. The ethnic traits of Cubans give them a comparative advantage that is not accorded to ANY other ethnic group in the United States. Such a comparative advantage, of course, implies a negation of equal protection.
It should be noted that if a US citizens marries a Cuban, then he/she can travel to the island as well. Thus, the concept of national origin does not refer to merely coming from Cuba. And American could obtain the right to travel, but only through marriage to a person of Cuban ancestry. Hence, the right of an American to travel is enhanced when that person marries a person who can claim to be from Cuba, or to have an ancestor who was Cuban.
Thus, the US Congress in making an exception of the Cubans’ right to travel have violated the Equal Rights Act as well as the Constitutional right to travel that applies to all US citizens.
Although I am a Cuban American and benefit from the new rules, I think it is an outrage that such a right is denied to people who do not have a familial connection with Cuba. Why such a differential policy that limits the right to travel of so many American citizens? How can any one sustain a foreign policy rooted in a two-tier classification of the people of the United States?
Under the new rules, permanent resident aliens from a Cuban ancestry in the US will enjoy a right of travel that non Cuban ancestry US citizens do not have. Hence, we are confronted with a clear and obvious violation of the 14th Amendment since non-Cuban ancestry citizens of the United States are considered members of an inferior or dependent nationality and a non participant in the enjoyment of a right granted to others. Such inequality treats 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.  Moreover, the right to unconstrained travel is founded on principles of non-discrimination and equal citizenship. That is why, the present policy on travel to Cuba and its unequal application should be rejected. Every US citizen and resident alien should have the right and freedom to travel to Cuba, if they wish to do so.
 Adarand, 515 U.S. at 223, 227; Clark v. Jeter, 486 U.S. 456, 461 (1988)
Nelson P Valdés is Emeritus Professor of Sociology (University of New Mexico) and director of the Cuba-L Project.
This article was written for Cuba-L Direct and CounterPunch.