- The Washington Times - Tuesday, June 6, 2000

The 11th U.S. Circuit Court of Appeals' decision regarding Elian Gonzalez's asylum petition is distressing on a number of levels. However, the court did not vindicate the Clinton administration's position either. Thus, it is important to be clear about what the court did and did not say.

In essence, the appeals court ruled that the administration had broad discretion to establish a policy regarding how a 6-year-old may file an asylum petition. In other words, it was up to the Immigration and Naturalization Service (INS) to establish policies regarding the filing of such a petition, including who may speak for the 6-year-old and whether he may speak for himself.

Although the INS' newly created policy was a bit more nuanced, it boiled down to this: A 6-year-old cannot file a valid asylum petition if his father in Cuba is opposed. The court took pains in four separate parts of the opinion to state that this particular Clinton 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."

Because the 11th Circuit ruled that the agency's discretion over such a policy was broad, it would have upheld almost any INS policy. What is striking is that the court found it necessary to dispel with such force the notion that the DOJ was compelled by law to act as it did. Apparently, the court was as tired as the rest of us of the hypocritical argument that the administration was compelled by "the rule of law" to act in a reprehensible manner.

But after expressing its "trouble," "worries," and other concerns with the Clinton policy, the court reluctantly concluded that it "was within the outside border of reasonable choices" available under the statute stressing several times that the administration could have acted otherwise. This is hardly an endorsement of the policy. For a court that believes it must defer to the political branch's discretion, this is a rebuke.

Thus, the inhumane policy should still be condemned in the harshest terms. Far from letting the Clinton administration off the hook, the ruling actually places the responsibility for sending Elian back to Cuba squarely where it belongs. Let the renewed recriminations begin.

Regarding the law, a strong case can also be made that the 11th Circuit should not have deferred to the INS policy in this case. On May 1, the Supreme Court issued an opinion in Christensen vs. Harris County that calls into question the normal deference that is due when an agency policy is in the form of a policy guidance or opinion letter that was not promulgated pursuant to notice-and-comment rule-making procedures.

The 11th Circuit did not cite this case, and apparently did not follow its command. The INS' Elian policy ("we do what Fidel Castro tells us") was the most ad-hoc policy decision possible. Indeed, it is the opposite position from what the INS first announced within a week after Elian was turned over to his Miami relatives. On Dec. 1, 1999, the INS said that Elian's case was a state court custody 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." That was before Mr. Castro rattled Mr. Clinton's chains.

In other contexts, I have questioned the scope of deference the courts grant executive branch interpretations of law. This deference is supposedly owed as an exercise of judicial restraint and to preserve the separation of powers, but it can go too far. Instead of preserving the separation of powers, it tends to support a cowardly Congress and an executive branch hungry for power. More importantly, it leads to a type of power-sharing arrangement by the three branches of the federal government, rather than a true separation of powers, at the expense of state governments.

But even under the existing legal doctrine, there was no reason for the 11th Circuit to defer as broadly as it did to the situational INS policy in Elian's case. The INS policy was merely a litigation position (i.e., invented to win a lawsuit) despite the court's erroneous contrary finding, and was due no deference by the federal courts. The failure to cite or follow the Christensen case raises other concerns, for the Supreme Court explained that an informal policy is entitled to respect but not any sweeping deference by the courts.

The court should have engaged in its own interpretation of the asylum statute. After giving due "respect" to INS' litigation position, the court was free to reject that position in favor of a more natural reading of the statute.

Congress could not have intended to grant a veto (with or without qualifications) over the filing of an asylum petition to someone who lives in the country that the petitioner is fleeing from. That creates an inherent conflict with the asylum statute. But even if I am wrong about the most natural reading of the statute, nothing can change the fact that the Clinton administration could have chosen to give Elian a hearing but chose secret dealings with Mr. Castro instead.

Todd Gaziano is a senior fellow in legal studies at the Heritage Foundation.

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