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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.

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