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Jewish World Review June 7, 2000 /4 Sivan, 5760

David Limbaugh

David Limbaugh
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Consumer Reports

Elian: Whose hands were tied? -- UNLIKE THE EXECUTIVE BRANCH of the federal government under the Clinton administration, the 11th Circuit Court of Appeals acts within limitations imposed on the judicial branch by the United States Constitution.

The 11th Circuit made this point quite clear in the very first paragraph of its decision, reluctantly affirming the authority of the Immigration and Naturalization service to reject Elian Gonzalez's asylum petition. And the Court continued to proclaim this principle throughout its opinion.

Even conservatives who supported Elian remaining in the United States (or at least having a family court make the decision based on the child's best interests) should be applauding the 11th Circuit for honoring the separation of powers doctrine. Because underlying their crusade for Elian is their passion for freedom, and the separation of powers is one of the most important constitutional safeguards for our freedoms. To remain consistent, conservatives must persistently reject the socialist rationalization that the end justifies the means. If this appellate court -- whose sympathies arguably lie with granting Elian an asylum hearing -- had judicially rewritten the law to grant the hearing, it would have done far more damage to freedom than will occur by Elian's return to slavery in Havana. We must adhere to the rule of law, even when it hurts.

But it didn't have to hurt. The Clinton-Reno INS didn't have to reject Elian's asylum application. In fact, the court characterized the INS' decision to reject Elian's application as "within the outside border of reasonable choices." In other words, the INS had the legal authority to deny Elian a hearing, but it was probably not the best decision it could have made.

The 11th Circuit opinion, then, in no way vindicated the actions of the Clinton administration, the Department of Justice or the INS. If anything, the court went out of its way to distance itself from this administration's policy decisions.

The court was not particularly impressed with Reno's argument that this case was primarily about parental rights and the wishes of the father. Nor was it particularly pleased about Reno's casual indifference to the conditions in Cuba. "We are not untroubled by the degree of obedience that the INS policy appears to give to the wishes of parents, especially parents who are outside this country's jurisdiction."

"Some reasonable people might say that a child in the United States inherently has a substantial conflict of interest with a parent residing in a totalitarian state when that parent -- even when he is not coerced -- demands that the child leave this country to return to a country with little respect for human rights and basic freedoms."

Though careful to exercise judicial restraint in refusing to substitute its own policy preferences for that of this administration, the Court expressed concerns about the "special circumstances of a parent (living) in a communist-totalitarian state." "We acknowledge, as a widely-accepted truth, that Cuba does violate the human rights and fundamental freedoms and does not guarantee the rule of law to people living in Cuba." If you will recall, Janet Reno, in dispatching her federal agents to forcefully seize Elian from his Miami relatives, protested that she was doing so in deference to the rule of law -- that her hands were tied. It was the Court's hands that were tied, not the administration's.

There was no policy in effect requiring the INS to reject Elian's asylum application. The INS made the policy up as they went along. Indeed, the Court acknowledged that the policy "may not harmonize perfectly with earlier INS interpretive guidelines." Without question, the INS could have enacted an entirely different policy and would have been reasonable in doing so. "We, however, do not mean to suggest that the course taken by the INS is the only permissible approach."

The bottom line, folks, is that if Clinton hadn't been in such a hurry to placate Fidel Castro, Reno could have granted Elian an asylum hearing or a family court hearing to determine his best interests. Some immigration lawyers have even suggested that she could have granted him refugee status for humanitarian reasons under a separate statute.

Apart from the unforgivable raid, Clinton and Reno may have acted within their legal authority in denying Elian's asylum petition. But what is "legal" is not always what is right.

JWR contributor David Limbaugh is an attorney practicing in Cape Girardeau, Missouri, and a political analyst and commentator. Send your comments to him by clicking here.



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