The June 1 11th Circuit Decision to Defer to the INS in the Elian Case, June 10, 2000

This page is commentary on the 11th Circuit's June 10 decision.

URL: Php.indiana.edu/~erasmuse/_Elian/elian.htm. Eric Rasmusen, Indiana University, Dept. of Business Economics and Public Policy, Kelley School of Business, Room 456, 1309 East Tenth Street, Bloomington, Indiana 47405-1701, (812)855-9219. [email protected] , Php.indiana.edu/~erasmuse.

The 11th circuit panel ruled that the INS could make a rule which made Elian' asylum application invalid. The INS rule was that unless except in unspecified unusual circumstances, if a parent did not want a child to apply for asylum, the child could not apply. The court said that the rule was reasonable, and was not invented just for this litigation, because the lawsuit was not filed until immediately after the rule was made. The court also accepted the government's determination that Juan Gonzalez had blocked Elian's application without coercion by the Cuban government.

Some quotes from the opinion, GONZALEZ v. RENO, No. 00-11424, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 2000 U.S. App. LEXIS 11994, June 1, 2000, Decided, June 1, 2000,

There are a number of problems with this. Courts ought to be more deferential to the executive branch than they often are, but this is extreme. Remember the situation. The INS's first position was that the application was OK, and that this was a matter for state courts. After an apparent Clinton-Castro deal, and after an unfavorable state court ruling, the INS changed its rule and said this was not a matter for the state courts, and made its anti-Elian rule. The rule was made without any chance for input from either the public or from Elian or from Lazaro Gonzalez, and it was in discord with older INS guidelines.

Thus, we pretty obviously have a general rule made to get the desired result in a particular case.

The reason that courts ordinarily defer to the executive branch is that the executive branch is better at making rules. It has more time than is possible during a court case, and can devote many expert people to making the rule, instead of one or a few judges trying to make the rule despite lack of expertise in the particular subject. Also, the executive branch ordinarily proposes a rule first, to get public comment from interested people on both sides and from the general public, revising the rule after people point out flaws in it. Often the flaws are bad from everyone's point of view, not just one side or the other, but having a public comment period allows for many people to spot flaws. Moreover, the usual procedure is to make the rule before a partiuclar case comes up. That way, the government agency is not swayed by the politics or passions of a particular case, and won't make a bad general rule just because that rule suits it this week. A judge, on the other hand, is less likely than the executive branch to be politically influenced, but he can't make a rule until a particular case comes before the courts. It is much better to let the executive branch make the rule and have the judges defer, because then people can depend on the rule immediately after it is made rather than having to test every rule in different courts around the country.

But now look at the Elian rule. It was not made in advance of the case; it was not made after public comment; it was made hastily; it was clear the executive branch badly wanted a particular outcome; the President was a lame duck with one year left in office who would not at all about any future bad effects of the rule.

The rule is a bad one. It is vague, so it can't be relied upon in the future by people trying to make decisions. Suppose an 11-year-old North Korean is thinking of defecting while his parents are in the U.S. Does the Elian rule mean that he would be sent back to them to be punished? It's not clear. Suppose a 3-year-old child of a Chinese dissident woman escapes with her to America, but the dissident is hospitalized and unable to make decisions. Can the dissident's husband quash the asylum application and take the child back over the weekend? The Elian rule is unclear.

The second big mistake of the 11th Circuit was its deference to INS factfinding. The INS said that even without an interview with Elian, it could see that he and his father did not have very divergent interests. The INS also said that it had interviewed Elian's father in Cuba and could tell from the way he looked and talked that he was not under coercion from the Cuban government. THe 11th Circuit said that the courts shoudl give deference to the government when it makes findings of facts like this. This is just plain silly. This is a highly political case, in which the INS is clearly biased. Yet the judges are accepting the INS's finding of fact. Moreover, the particular finding of fact that Elian's father was not under coercion is utterly incredible. Does anyone believe that there is free speech in Cuba? And not just free speech, but that person employed by the government, without support from any political or military organization, could say something that would cause extreme embarassment to the regime and get away with it? Remember the INS's evidence that there was no coercion-- they interviewed Juan Gonzalez and he didn't look coerced. Maybe he didn't. That wouldn't mean anything. At the Moscow show trials in the 1930's, plenty of news reporters said that the defendant former colleagues of Stalin looked like they were freely confessing their crimes agains the regime.

But suppose Juan Gonzalez did look coerced. Was the INS agent going to keep *his* job if he came back and said, "Sorry, Mrs. Reno, but Juan Gonzalez looked unhappy, could hardly drag the words out of his mouth, and had two black eyes and bruise marks all over his neck. I guess you'll have to tell President Clinton that Castro is out of luck and the law says that Elian can make his asylum application." What would happen to the INS agent if he lied? The agent was not even going to be cross-examined in a court by a clever lawyer-- the INS just presented the judge double hearsay: the judge not only could not put Juan Gonzalez under oath and look him in the face to see if he was telling the truth, he couldn't even look the INS agent who interviewed Juan in the eye.

So the 11th Circuit gave deference to an inherently implausible finding of fact by a biased factfinder.

So far I have been talking about rulemaking, not about what would happen in the particular case of Elian. In his case, the ultimate result would not depend on the rule: the INS would still send him back to Cuba. The congressional statute on asylum gives wide discretion to the INS on whether asylum is granted. It is clear that after the INS has gone through its procedures and looked at the facts, it can grant asylum or deny it as it pleases, without following any particular rule. Thus, the INS can decide to give an apparently nonpolitical Cuban asylum one day, and then deny asylum the next day to someone who spent 20 years as a political prisoner and has a price on his head in Cuba. Even if Elian's father actually wrote a letter saying he wanted his boy to stay in America, the INS could send Elian back if they wanted-- after going thorugh the appropriate procedures.

Congress gave the INS this discretion purposely. The reason was to keep the courts out of the business of deciding on the merits of particular cases. Congress knew that the INS might make bad decisions on particular cases, but it also knew that the INS would come under political attack if it made bad decisions. If it turned down the 20-year prisoner, for example, the newspapers and everyone else would condemn the INS and the President, Congress might decide to have hearings and cut INS funding, and so forth. For that reason, so long as the process is open, so everybody knows what bad decisions are being made, it is okay to give the INS discretion.

The question before the 11th Circuit, though, was whether the INS had to take responsibility for its decision. The INS did not want to accept Elian' application. Why not? They could always turn down his application after going through the usual procedure of having an interview and a hearing. But the INS wanted power without responsibility. So it hastily made a rule to kick back Elian's application. That way, the INS could say, "It isn't that we think he has a bad case for asylum-- we haven't even interviewed him, so how could we know? But we have this rule that a child needs parental consent to file an application."

Power without responsibility is dangerous. The 11th Circuit's ruling, if consistently applied, means that the executive branch could do anything it liked and deny responsibility under the camouflage of new procedural rules. Suppose the President wanted to put Microsoft out of business. According to the 11th Circuit, he could make a new rule that software companies over a certain size must meet special sulfur dioxide emission standards, and then make a finding of fact that Microsoft failed to meet those standards, despite the fact that software has nothing to do with sulfur dioxide. He could put a pharmaceutical company he disliked out of busienss by requiring that applicationsf or FDA approval of drugs for the ailments it was particularly strong in be filled out on red paper, and then claiming the paper it used was not red enough.