Law Trumps Politics - For Now

000427 earlyshow elian gonzalez and brother CBS

Slowly but surely, the law in the Elian Gonzalez saga is overtaking the politics of it.

First, the Iimmigration and Naturalization Service ruled that the little boy could not get an asylum hearing. Then, the Justice Department backed up its agency. Then, the district court ruled the same way.

And now, a federal appeals court panel has ruled that the little boy's Miami relatives were unable to overcome the legal presumption that Justice Department and the INS had, indeed, acted within their broad discretion in choosing not to hear his purported asylum request.

This string of judicial decisions is not at all surprising, given the clear state of the law on these issues. The law always has been on the side of the federal government. It always has suggested that 6-year-olds do not have the maturity necessary to make their own decisions and that a natural parent has the sole right to speak on behalf of his or her child.

And the law always has suggested that federal agencies like the INS have broad authority to act within their statutory mandate.

But until Thursday, those fairly simple legal issues had become clouded in the complex politics of the Elian story. This allowed folks to raise questions - legitimate or otherwise - about how the judges involved would act.

Would they allow the boy to stay in this country despite the legal precedent to the contrary? Would they be so critical of the INS that they would at least require an asylum hearing? Would they send a political message with their judicial ruling?

We now know that the answer to each of those questions is an emphatic "no." The law has trumped politics, at least for the time being.

The family in Miami has 45 days to appeal Thursday's ruling to the full appeals court panel in Atlanta - 12 judges - essentially asking the whole group to reconsider the decision made by 3 judges. These requests usually don't go very far-- the full court tends to back up what its panel has initially decided.

If the full appeals court decides against Elian's Miami relatives, those folks can then ask the Supreme Court itself to get involved.

Or Elian's local relatives also can jump a step in the process and ask the Supreme Court to intervene now. They have 90 days to make such a request. Of course, the problem for the family under this scenario is that the Supreme Court has no obligation to take every case, much less a case that has produced a unanimity of opinion from every administrator and judge who has looked at the issues.

As a practical matter, however, these faraway deadlines won't mean a lick if the injunction currently keeping the boy in this country is dissolved in 14 days, as Thursday's ruling indicated it would be.

That's the first order of business for the family in Miami. They must get another court, or they must ask the same court which Thursday ruled against them, to extend the injunction until the next round of appeals i resolved-- which could take months.

Apparently, they've already moved in that direction, asking Supreme Court Justice Anthony Kennedy, who presides over this area of the country, to extend the injunction on an emergency basis. If Kennedy extends the injunction, Elian won't be going anywhere anytime soon. If Kennedy does not extend the injunction, and if no other court does either, Elian will be free to leave for Cuba on June 15.

The injunction issue represents another bit of bad news for Elian's Miami relatives. As they lose each round it becomes more and more difficult for them to argue with a straight face that they ultimately will prevail, a significant factor courts look at in deciding whether to issue injunctions.

So it's no guarantee that Justice Kennedy - or any other judge - will be as sympathetic to the idea of an injunction as the federal appeals court was a few months ago. Which means that Elian indeed may not be long for this country.


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  • CBSNews.com staff CBSNews.com staff

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