Can a challenge to Obama’s Cuba policies succeed? | Miami Herald

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 could 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 has already spent almost $500,000 in legal fees. He sees suing the U.S. government as a last resort, but said he’s prepared to move forward if necessary. He 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.

The law firm of Steptoe & Johnson issued a report last year that found new rules allowing the use of debit and credit cards “were inconsistent with the prohibitions in the U.S. law related to indirect financing of confiscated properties in Cuba.”

It may take a little time, but Claver-Carone has 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 illegally.

“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 overturn them.

“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.