Can a challenge to Obama's Cuba policies succeed?
BY FRANCO ORDOÑEZ
It's not that he's not interested nor does he feel like he doesn't have
a strong case, but the idea of taking on the Obama administration in
court is not something Javier García-Bengochea is eager to do.
It's been suggested to him that that would be one option to fight
against what he sees as the U.S.-sanctioned, illegal use by a cruise
line of his family port in Cuba, which was confiscated by the Cuban
government in 1960. But while he feels strongly he's right, he knows
it'd be a herculean fight.
"This would take years to litigate, if not more than a decade,"
García-Bengochea said. "Most lawyers are not going to do it on
contingency. It would bankrupt me."
President Barack Obama's latest regulatory moves to ease trade and
travel with Cuba have angered many Cuban-Americans in South Florida, in
Congress and across the country.
But despite the belief of some members of Congress and some legal
scholars that Obama's new policies violate the Helms Burton Act of 1996,
which set strict limits on when trade with Cuba can be restored, they
know overturning the Cuba opening will be difficult.
"The Obama administration approach to dismantling the embargo has made
it extremely difficult to undo what they put in because there are
limited avenues to overturning it," said one former executive branch
official who was involved in drafting of the Helms Burton Act, but
didn't want to be quoted criticizing another administration.
Congress could try to take the administration to court, as it has in the
past, but it will need to speak with a unified voice, and there doesn't
seem to be enough support to move forward. It could pass legislation to
block the changes, but it's not clear that such an effort could pass
both chambers of Congress and be signed by the president.
Someone like García-Bengochea, who has a certified claim, could take the
case to court. Almost 6,000 U.S. citizen hold interests in claims
against the Cuban government for its seizure of their property. It's
Cuba's failure to reimburse those claims that led initially to the
imposition of the embargo.
García-Bengochea might be able to sue under Title III of the
Helms-Burton Act, which allows Americans to sue companies that "traffic"
in Cuban-owned property that the Cuban government confiscated without
compensating U.S. former owners. García-Bengoochea points out that
U.S.-operated cruise ships now dock at a port in Santiago that his
family used to own before the Cuban government confiscated it without
payment in 1960.
But Obama and other presidents have routinely suspended that provision
as they're allowed to do preventing such lawsuits.
That hasn't dissuaded opponents like Mauricio Claver-Carone, executive
director of the U.S.-Cuba Democracy PAC, a political action committee.
Claver-Carone has been in touch with García-Bengochea and attorneys to
see who might be able to file a lawsuit.
It may take a little time, but he's been encouraged by recent court
reversals of other controversial Obama actions, including the
president's plan to stop the deportation of some people in the country
"They've been very creative," Claver-Carone said of the administration.
"You can tell the White House's mandate has been to take the law to the
very edge possible and, in some cases, 'Tip your toes over and see if we
get challenged.' That is what they did with immigration."
But whether a lawsuit will actually develop is unclear. The conservative
group Judicial Watch, which has been a driving force behind forcing the
State Department to release Hillary Clinton's email, is investigating
how the U.S. Treasury Department authorized a major U.S. hotel company
to operate existing hotels in Cuba, and Rep. Mario Diaz-Balart, a Miami
Republican, has had conversations about whether the House of
Representatives could take up legal action.
But Republicans are not nearly as unified in opposition to the Cuba
opening as they've been on other issues such as "Obamacare" and
immigration. Some Republicans, like Sen. Jeff Flake of Arizona, openly
champion closer ties with the island nation.
The White House has defended the policy moves, saying they're within the
president's legal authority, but administration officials haven't hidden
the fact that they're seeking to make the changes "irreversible."
On Friday, the Obama administration announced a new round of regulatory
changes meant to ease trade, travel and financial restriction with Cuba
and make it harder for any new administration to reverse them. National
Security Adviser Susan Rice said "common sense" would keep others from
retightening the embargo.
"It'll be profoundly unwise to turn back the clock," she said.
Diaz-Balart said any effort to undo Obama's Cuba policies probably had
to wait for another president. But that appears a long shot for now.
Democratic candidate Hillary Clinton, ahead in the polls, has pledged to
continue Obama's measures to expand ties to Cuba.
Last Friday, Donald Trump and his running mate, Mike Pence, promised to
"The people of Cuba have struggled too long. Will reverse Obama's
Executive Orders and concessions towards Cuba until freedoms are
restored," Donald Trump tweeted.
Otto Reich, who served as assistant secretary of state for the Western
Hemisphere during the first term of President George W. Bush, said he
saw a strong appetite to fight Obama's policies, and though he's not a
lawyer, he sees the courts as an avenue to challenge the administration.
He notes that several of Obama's other policies have been overturned and
he thinks a reversal of Obama's executive actions on Cuba is "very likely."
"What Obama is doing seems to be based more on ideology and wishful
thinking than it is based on the law or even the practicality of our
policies," Reich said.
Email: firstname.lastname@example.org; Twitter: @francoordonez.
Source: Anger over Obama's Cuba policies high, but the alternative is
unclear | In Cuba Today -