The Administration's conduct is reprehensible.
By Todd Gaziano, senior fellow in legal studies, The Heritage Foundation. National Review. 6/01/00 5:20 p.m.
The Eleventh Circuit's decision regarding Elian Gonzalez is wrong and may — sadly — deny Elian his asylum hearing, but it does not vindicate the Clinton Administration's position either. Yet, the Clinton Administration's spin regarding the opinion is sure to mislead if it is not
forcefully opposed.
Although I think the court erred in the degree of deference it gave to the INS's inhumane policy, it is important to stress that the court did not endorse that policy. In fact, the court took great pains to distance itself from that policy, which it said was not required by "law."
In essence, the appeals court ruled that the Clinton Administration had the discretion to establish a policy regarding how a six-year-old can file an asylum petition. The Court said it was up to the INS to establish policies regarding the filing of such a petition, including who may speak for
the six-year-old and whether he may speak for himself.
Although the INS's official policy was a bit more nuanced than this, the INS's newly-created policy seems to be that a six-year-old cannot file a valid asylum petition in this country if his father in Cuba is opposed. In three separate portions of the opinion, the court pointed out that this
particular INS policy was not required by law, as the Clinton Administration has claimed: "It has been suggested that the precise policy adopted by the INS in this case was required by 'law.' That characterization ... is inaccurate."
The court simply said the INS had broad discretion to decide whether a petition was properly filed. The court would have upheld almost any INS policy under this rationale. What is unusual is that the court thought it necessary to explain in such detail that the DOJ was not compelled by law to
act as it did. In other words, the court thought it important to say that Clinton was not compelled by "the rule of law" to act in a reprehensible manner.
Thus, the INS's despicable policy should still be condemned in the harshest terms. Far from vindicating the Clinton Administration, the ruling actually places the responsibility for sending Elian back to Cuba squarely where it belongs. In this space, my friend Mark Levin has pointed out that
Clinton's pro-Castro policy was an abrupt reversal of the INS's original position. On December 1, 1999, the INS said that Elian's case was a state-law matter that did not involve the federal government: "Although INS has no role in the family custody decision process, we have discussed this
case with State of Florida officials who have confirmed that the issue of legal custody must be decided by its state court." But that was before Castro rattled Clinton's chains.
In short, the Eleventh Circuit decision may have spelled the realistic end of Elian's asylum litigation, but it should not end our denunciation of the despicable policy of this Administration to deny a six-year-old an opportunity to even be heard.
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