In an earlier post, I expressed some incredulity with respect to an dubious scheme cooked up by some Pennsylvania legislators to import Cuban rum without an OFAC license.  The scheme was based on a questionable reading of Clause 2 of the Twenty-First Amendment. There’s no way to tell whether my derision directed at the legal case for Cuban rum-running by the Pennsylvania legislators was responsible, but it appears that someone in Pennsylvania has thought better of the idea.

According to this article, the Pennsylvania Liquor Control Board which runs the Fine Wine and Good Spirits stores, Pennsylvania’s state-owned monopoly on the sales of wines and hard liquor, is preparing a license to file with OFAC to permit the PLCB to purchase Cuban rum for sales in those stores. The application apparently argues that the “mystique” of Cuban rum would create a boon to the Pennsylvania economy by enticing shoppers into the state-run liquor stores. After all, who needs to fly down to Havana when you can buy Cuban rum in a state store in Erie or drink authentic daiquiris made with Havana Club in Wilkes-Barre?

A Pennsylvania state senator instrumental in the state’s efforts to bring Cuban rum to his state dismissed the notion that this plan posed a threat to national security, telling ABC News “We’re talking about buying a rum.” Good point.

But, of course, with all things Cuba not everyone agrees — here’s an irate letter to the editor of the Express Times in Lehigh Valley criticizing the proposed rum deal.

For those of you now planning a road trip to Pennsylvania to stock up on Cuban rum when (and if) it becomes available there, I commend to you this recipe for the El Presidente Cocktail. This cocktail was named after Cuban president Gerardo Machado (who served between 1925 and 1933) and was a favorite among Americans who sought respite from Prohibition in the night clubs of Havana. And, as the recipe makes clear, use real grenadine that you make yourself, not that pink-colored sugar water that you find on grocery shelves or in the wells of your less estimable drinking establishments. Cheers!

Photo Credit: Havana Club on the Road to Havana by Richard Smallbone [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/nxC2Pr [cropped and processed]. Copyright 2013 Richard Smallbone

A story in the Pittsburgh Post-Gazette (and not, I swear, in The Onion) reveals that a bunch of Pennsylvania state legislators flew off to Cuba where they concocted this genius plan. Step 1: ship boatloads of rum from Cuba to state liquor stores in Pennsylvania without an OFAC license and in defiance of the embargo. Step 2: argue that Pennsylvania can simply ignore the embargo and import all the rum it wants for ever and ever because of Clause 2 of the Twenty-First Amendment to the U.S. Constitution. Seriously. (The esteemed University of Pennsylvania Law School is reportedly so embarrassed by the legal reasoning of its local legislators that it packed up in the middle of the night and relocated to the recently vacated Qualcomm Stadium in San Diego.)

If you just clicked on the above link to the Twenty-First Amendment, you are probably pretty confused as to how anyone, state senators included, could argue that this clause allows a state to import Cuban rum in violation of the Cuban embargo. After all, it reads:

The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

It seems clear from the language and the history of Clause 2 that it was designed to allow states, if they wanted, to remain dry and regulate the sale of liquor in their own states. Mississippi, bless its heart, stayed dry until 1966. Kansas prohibited public bars until 1987. (Useful trivia: the reason Dorothy said to Toto, after landing in Oz, that they weren’t in Kansas any more was because she saw a bar.)

The clause has been read to give states the right to regulate the importation of liquor from other states by imposing taxes that would otherwise violate the Commerce Clause. But the courts have pretty much stopped there, with Craig v. Boren holding that Clause 2 did not permit states to set different drinking ages for men and women and California Liquor Dealers v. Midcal Aluminum holding that Clause 2 did not override the federal Sherman Act.

All that being said, nothing in Clause 2 which allows states to restrict importation and sale of liquor to their hearts’ content also allows states to import liquor in violation of federal law.  It says that imports prohibited by state law are prohibited, not that imports permitted by state law are permitted.  Morever, even if it did, the embargo would still apply.  If Clause 2 doesn’t trump the Sherman Act, it certainly doesn’t trump the Trading with the Enemy Act or Helms-Burton.

Moral of the story: legal theories concocted after long afternoons of daiquiris and mojitos in Havana will not likely survive judicial scrutiny.

Photo Credit: Havana Club on the Road to Havana by Richard Smallbone [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/nxC2Pr [cropped and processed]. Copyright 2013 Richard Smallbone

ABOVE: Ben “Lucky” Schlappig

A homeless blogger named Ben “Lucky” Schlappig, who makes his living flying on airplanes and staying in hotels, has decided to take up the practice of law along with advising fellow travelers on the intricacies of the airline and hotel reward programs. The result is pretty much what you would expect when Lucky opines on the legality of traveling to Cuba as a tourist.

Technically Americans can only travel to Cuba for one of about a dozen approved reasons. … In practice, most people traveling to Cuba as tourists choose either “Support For The Cuban People” or “People-To-People Exchanges” as the reason for visiting.

So technically you can’t go if tourism is your stated reasons [sic], though in practice there are tens of thousands of American tourists going. That’s because they keep the categories intentionally broad, and you won’t generally be asked about the details of why you’re going to Cuba. Arguably when you’re a tourist somewhere you have “people-to-people exchanges” and also “provide support” to the people.

Without hesitation I’d feel comfortable recommending people visit Cuba as tourists and just state one of those as the reasons.

Arguably, when you’re relying on a pretend lawyer, your mileage may vary.  Also, never trust anyone who goes by the name of “Lucky.”

Of course, OFAC anticipated that amateur lawyers like Lucky would say that all tourism in Cuba was inherently a people-to-people exchange, so it gave an example here, in the actual rules (which Lucky clearly did not bother to read), to put the kibosh on such silliness:

An individual plans to travel to Cuba to rent a bicycle to explore the streets of Havana, engage in brief exchanges with shopkeepers while making purchases, and have casual conversations with waiters at restaurants and hotel staff. None of these activities are educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, and the traveler’s trip does not qualify for the general license.

So, just as you should not trust my opinions on how to get the most frequent flyer miles from your airline, you probably shouldn’t trust Lucky when he tells you to travel to Cuba as a tourist.