Last week’s 11th Circuit opinion, which effectively resolves the Elian Gonzalez case and clears the way for young Elian to be sent back to Cuba, leaves us feeling a sickening sort of vindication.
At no point in the whole Elian affair were Clinton administration officials “upholding,” “obeying,” or “abiding by” the rule of law — to take a mere sampling from the steady stream of cant that accompanied their pronouncements on the issue. They were making it up as they went along. Let us be perfectly clear about what the court ruled. It did not find that the White House was right to send Elian back to Cuba. (Although the president continues to insist, disingenuously, that it did.) No: The court found that the White House had chosen to send Elian back to Cuba by executive fiat, and there was nothing within the bounds of judicial restraint that the court could do to stop it. Elian will soon be on his way back to a totalitarian torture state not because U.S. law requires that outcome, but because the Clinton administration has decided to send him back.
Lazaro Gonzalez and Elian’s Miami relatives seem to have been on solid ground in arguing that, under 8 U.S.C. § 1158, “any alien . . . may apply for asylum.” The Immigration and Naturalization Service countered that, since that section of the U.S. Code didn’t address the specific instance where a child was applying against the wishes of a parent, it was entitled to create — ad hoc — a policy on the matter. The policy it settled on was: What Elian’s father, Juan Miguel, says, goes. It blithely dismissed the question of whether Juan Miguel was acting under coercion.
Because the law was vague, the INS was able to invent its own policy. The administration’s loophole was this: While a 6-year-old may apply for asylum, a petition filed by a non-parental relative against the wishes of a parent does not amount to a valid application for asylum. The relevant law said nothing about what constitutes a valid application. That opens the door to executive discretion. The court also implied that, in exercising its discretion, the administration wound up with a policy inconsistent with past INS interpretive guidelines — but those guidelines are not law.
The court was “not untroubled by the degree of obedience” the INS demonstrated toward a parent outside this country’s jurisdiction. The court was also particularly “worried” that, “according to the INS policy, that a parent lives in a communist-totalitarian state is no special circumstance, sufficient in and of itself, to justify the consideration of a six-year-old child’s asylum claim.” Juan Miguel could have been acting under coercion, and a child living in a free society could have a conflict of interest with a parent living in a totalitarian one. All the court said was, “We cannot properly conclude that the INS policy is totally unreasonable.” What’s more, it said it was offering extra deference to the administration because this aspect of INS policy implicated foreign affairs.
The court clearly believed the Clinton “policy” in the Elian matter — not a policy but an order — was stupid and cruel. But since it was not illegal, the court found it had no statutory authority to gainsay the INS’s decision. Nevertheless, the court explicitly addressed Cuba’s system of government. “No one,” the opinion runs, “should doubt that, if Plaintiff returned to Cuba, he will be without the degree of liberty that people enjoy in the United States. Also, we admit that re-education, communist indoctrination, and political manipulation of Plaintiff for propaganda purposes, upon a return to Cuba, are not beyond the realm of possibility.”
Between the lines of the decision, you can read the language of a court heartbroken that it must rule the way it does: “We are obliged to accept that the INS policy, on its face, does not contradict and does not violate section 1158, although section 1158 does not require the approach that the INS has chosen to take.” And most damningly, “The policy decision the INS made was within the outside border of reasonable choices.”
The court insisted that it was “guided by well-established principles . . . of judicial restraint.” And it was. “As policymakers,” the decision noted, “it is the duty of Congress and of the executive branch to exercise political will.” In this case, the executive branch exercised its political will to malevolent ends, and the Congress, which has plenary authority over immigration matters and to which the INS ultimately answers, exercised its political will not at all.
The court therefore faced an awful dilemma and had no way out. On the one hand, it could send a 6-year-old boy back to the totalitarian hellhole his mother died trying to rescue him from. On the other hand, it could further damage the separation of powers on which the integrity of our government rests, and which judicial-activist judges have done so much to erode — often to the delight of the very same people who are most eager to ship Elian back.
That the court made a good and honorable decision doesn’t make us any less glum about Elian’s future. In declaring that the Elian Gonzalez case is “mainly about separation of powers under our constitutional system of government,” the 11th Circuit seems to have closed off many avenues of appeal that could take it to the Supreme Court. We now think it likely Elian will be back in Cuba within a month’s time. After that, as anyone with even a nodding familiarity with Cuba knows, you’ll be seeing Elian often on TV shows and at rallies. The next time you see him, he’ll be denouncing the imperialistic mafia and counterrevolutionary bandits who fed, clothed, and loved him for the five months after his mother died.
At that point, perhaps some people will take notice, and express surprise, and ask, in effect, Who lost Elian? We will blame President Clinton, Attorney General Reno, and immigration director Doris Meissner, for being amoral enough to send a boy back to a Communist dictatorship, cynical enough to do business with a Communist dictatorship, and, above all, dishonest enough to pretend that the law demanded their deference to a Communist dictatorship.
We will blame a Republican Congress for being too feckless to stop them.
But we will continue to hope that before Elian is too much older he will live in a free and democratic Cuba.
Christopher Caldwell, for the Editors
