ELIAN AND THE ADMINISTRATIVE STATE

Unfortunately, my former client Walter Polovchak retains the title of "The Littlest Defector," thanks to yesterday’s decision by the U.S. Court of Appeals for the 11th Circuit, which unanimously upheld the INS’ rejection of Elian Gonzalez’s asylum application.

There is much that must be said about the Elian episode. That Elian’s fight for freedom coalesced groups of America-haters who haven’t been heard from so vociferously since they worked for a communist victory in Vietnam. That the state of Florida dropped the ball in not fighting for Elian in the family court, thereby setting up a federalism conflict with the federal government (as we did in the Polovchak case), which might have taken the case to the Supreme Court of the United States. That many normally anticommunist conservatives were so fixated on "family values" that they evaded what they know about Castro’s totalitarian domination of all Cubans, in and out of families. That some liberals who would have fought in the streets to prevent a Bantu child from being returned to apartheid South Africa or a Jewish child being returned to Nazi Germany demanded Elian’s return to Cuba. That poll-watching congressmen and senators eventually stomached government conduct comparable to that of America’s worst enemies. That the China-loving White House, its accommodationist State Department and handmaiden Justice Department/INS stymied Elian’s quest for freedom in order to build bridges to one of the few remaining communist dictatorships. But of everything that can be said about Elian Gonzalez’s story, the most important point is what the decision of the 11th Circuit says not only about Elian’s rights, but about the rights of all of us in the 21st century’s administrative state to which the courts slavishly defer.

Federal law provides that "(a)ny alien … may apply for asylum." Since Elian is "any alien," the syllogism’s logical conclusion is that "Elian may apply for asylum." But in the world of Bill Clinton, Janet Reno, the INS, anti-anticommunism, and the 11th Circuit, logic is subordinate to what the court’s opinion called "… well-established principles of statutory construction, judicial restraint, and deference to executive agencies…"

In part, logic was too formidable for the 11th Circuit, which recognized Elian could apply for asylum: "The important legal question in this case, therefore, is not whether (Elian) may apply for asylum; that a six-year-old is eligible to apply for asylum is clear." But there was more: "The ultimate inquire … is whether a six-year-old child has applied for asylum within the meaning of the statute when he, or a non-parental relative on his behalf, signs and submits a purported application against the express wishes of the child’s parent." In other words, Elian could apply, but since he was only 6, how could he apply? The court said the statute doesn‘t say how: "(t)he statute includes no definition of the term ‘apply.’" This, according to the court, is a "gap" (the court’s word) in the statute, and even though it is the duty of the courts, not administrative agencies, to interpret the law, the INS has the power the fill the "gap" with its own interpretation: "The INS, in its discretion, decided to require six-year-old children — who arrive unaccompanied in the United States from Cuba — to act in immigration matters only through (absent special circumstances) their parents in Cuba." As to the INS’ conclusion that no "special circumstances" were presented even though Elian’s father lived in a "communist-totalitarian" state, the court held that conclusion not unreasonable even while expressly acknowledging "as a widely-accepted truth, that Cuba does violate human rights and fundamental freedoms and does not guarantee the rule of law to people living in Cuba."

The court’s "restraint" and "deference" to the INS was not limited to allowing the agency to fill in the "gap: to a federal statute. It extended to an across-the-board ruling that the agency had acted "reasonably" in rejecting Elian's own application, in dismissing Lazaro Gonzalez’s application on the boy’s behalf, in concluding that Elian’s father was not being coerced by Castro, in deciding that Elian’s asylum application lacked merit, in making a preliminary negative assessment of Elian’s asylum claim without interviewing him, in not accepting Elian’s fears of persecution were he returned to Cuba.

Why this restraint of a judicial power that can be so formidable in other contexts? Why this deference to an administrative agency, unallocated by, and unaccountable to, the political will of the people? Part of the answer was expressly provided by the court: "… significant consequences for the President’s conduct of our nation’s international affairs…" While true, that’s not what the court’s opinion is really about. Not when the court can openly state that "(n)o one should doubt that, if (Elian) returns 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 (Elian) for propaganda purposes, upon a return to Cuba, are not beyond the realm of possibility.:" Thus, the 11th Circuit opinion is a ringing endorsement of the administrative state. Of every agency — federal state, local — that meddles in our lives and exalts government power over individual choice and freedom. The opinion is a ringing endorsement of the courts’ "hands off" attitude that allows agencies to do virtually what they want, free of meaningful judicial (or political) oversight, whatever the cost to individual rights. And in the 11th Circuit’s ringing enforcement of the American government’s expulsion of a little boy who wanted only to be free, we can hear other not-too-distant echoes: the "relocation" of loyal Japanese-Americans during World War II, the postwar forced "repatriation" of Soviet escapees from western to eastern Europe, Miroslav Medved’s "return" to a communist grain ship when he tried to defect in New Orleans in the 1980s. Those episodes soil American’s commitment to freedom, as does the 11th Circuit’s decision in the now-infamous case of Gonzalez vs. Reno.