Elian: A lonely victim of judicial restraint

Coulter, Ann

Why is it that whenever the federal courts see the merits of judicial restraint, it's in a case where we could really use a little judicial activism, like whether to send a little six-year-old boy back to a Communist dictatorship?

The urge to obey the law and separation of powers suddenly overcame the 11th Circuit Court of Appeals last week when it upheld the Clinton Administration's determined goal of sending Elian Gonzalez back to Fidel Castro's Cuba.

Yes, fine, the court was very, very respectful of the separation of powers, and we conservatives are totally overwhelmed with joy about that. But why can't federal courts ever start respecting the Constitution's division of powers when they get, say, an abortion case? I for one am a little tired of being a happy loser.

Separation of Powers

The Elian decision was, in fact, a correct ruling under the law. In essence, the court relied on this sensible formulation, ignored by the courts in so many other contexts:

"As policy makers, it is the duty of the Congress and of the executive branch to exercise political will. Although courts should not be unquestioning, we should respect the other branches' policy-making powers. The judicial power is a Limited power. It is the duty of the judicial branch not to exercise political will, but only to render judicial judgment under the law."

Whoopie. One lone federal court has struck a blow for the separation of powers. Let's celebrate.

Because immigration policy is the province of the executive branch, the court found that it had limited room to overrule the Immigration and Naturalization Service's (INS's) decision to send Elian back to the Cuban Gestapo, where he will have no freedom of religion, no right of free speech, and where he will be jailed if he is found to be homosexual. (If only Elian had been old enough to claim a non-Euclidian sexual preference the American left might not have been tripping over itself to send the poor little guy back to Castro.)

In any event, the only question before this very judicially restrained court was whether the INS's newfound "policy" of deferring to the wishes of a parent on the asylum claims of a six-year-old was "unreasonable," "arbitrary," or an "abuse of discretion."

Asylum applications fall within the President's authority over foreign affairs, inasmuch as a grant of asylum requires a finding that the refugee would face political persecution from his home government. And, the court said: "In no context is the executive branch entitled to more deference than in the context of foreign affairs."

As the court said: "Something even close to a per se rule-that, for immigration purposes, no parent living in a totalitarian state has sufficient liberty to represent and to serve the true, best interests of his own child in the United States-likely would have significant consequences for the President's conduct of our nation's international affairs: such a rule would focus not on the qualities of the particular parent, but on the qualities of the government of the parent's country."

And since the current administration is-to roughly paraphrase the court-partial to Communists, it is not for the courts to overturn that Commie-loving policy.

Pro-Communist Foreign Policy

Nor is it up to the judicial branch to decide whether Communist "[re-]education and indoctrination" constitutes "persecution."

The court admitted that "some reasonable adjudicator might regard things like involuntary and forcible `re-education' as persecution." But that was not for the judiciary to decide (unlike abortion, contraception, visitation rights, and everything else under the sun).

Consequently, the "ultimate merits of an asylum petition" were not before the court. "Instead, they are matters that would be committed to the discretion of the INS." The determination that a Communist country is a fine place to Live, warranting no special deference in weighing asylum applications, is President Clinton's call.

And that, boys and girls, is why you should vote this Commie-symp administration out of office, and install an American like George Bush. You 43% or 48% of the country who voted for Clinton, must now live with his pro-Communist foreign policy.

On the bright side, the court did find that the Clinton Administration was lying. (I'm trying, but there's not a whole lot to be joyful about here.)

The administration had claimed that its policy of refusing to consider asylum applications from six-year-oldchildren not represented by a parent was a long-standing INS practice.

The court found otherwise, stating that the INS could point to "no evidence in the record showing that the INS, in the past, has taken this approach."

Nor was the new policy consistent with earlier INS interpretative guidelines. In fact, the very first time the INS had ever acknowledged this policy was in Elian's case. But since Congress gave the executive the discretion to make up new policies as it goes along, the court's hands were tied.

(Amusingly, the lawyers for the Miami relatives had tried to argue that the INS had concocted the No-Six-Year

Olds policy solely as a litigation posture, to provide a post hoc justification for its actions. It was a good argument because if, in fact, the novel policy were nothing more than an "after-the-fact rationalization of agency action" the court would not have had to defer to the INS. Unfortunately the INS was right about this one. The Clinton INS had been champing at the bit to send Elian back to Castro from the moment they laid eyes on the little fellow.)

Doing Castro's Bidding

In case you're wondering whether this ruling finally validated all the scurrilous attacks on Elian's Miami relatives-and Cuban-Americans generally-as law-breakers, the court pointedly stated:

"It has been suggested that the precise policy adopted by the INS in this case was required by `law.' That characterization of this case, however, is inaccurate. As we have explained, when the INS made its pertinent policy, the preexisting law said nothing about the validity of Plaintiff's asylum applications. Instead, Congress just provided that `any alien' may apply for asylum and left the details of the application process to the discretion of the INS: '

It's all in the details, and the main detail here is our President is eager to do Castro's bidding. No matter what objection Elian's Miami relatives raised, it all kept coming back to the enormous discretion over immigration law granted to the executive branch-now presided over by one William Jef ferson Clinton.

The court did give a stirring description of the role of the judicial branch in such political decision-making:

"Federal judges-who have no constituency-have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: `Our Constitution vests such responsibilities in the political branches."'

It would be nice if the federal courts would remember that when Clinton is gone.

Copyright Human Events Publishing, Inc. Jun 16, 2000
Provided by ProQuest Information and Learning Company. All rights Reserved