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Elian's Legal Legacy

Miami 2000 is beginning to look and sound like Little Rock 1957 or Mississippi 1962. Back then, state and local leaders defied federal law and federal authorities over the issue of civil rights for black Americans.

Now, state and local officials in Florida talk about refusing to enforce law and order over the issue of the fate of Elian Gonzalez, a little Cuban boy whose very presence here has generated a huge political problem from what essentially is a very simple legal issue.

Elian should and eventually will be reunited with his father and returned to Cuba. But the next few days and weeks will determine whether Elian's Miami days end peacefully or in tragic violence on the streets of Little Havana. The outcome hinges on whether the feds and local authorities and Elian's Miami relatives and the lawyers on all sides put their heads together to work out an honorable and reasonable solution.

But however this story ends, this week's direct and implicit challenge to the rule of law by local politicians will be one of its lasting legacies.

Miami 2000, I suspect, could very well take its place in history books (or online history courses!) alongside Central High and Ole Miss.

The most astonishing comments during this week of astonishing drama in Miami undoubtedly came Wednesday when Miami-Dade Mayor Alex Penelas announced to a national television audience that local police would not assist federal agents in removing Gonazlez from the home of his Miami relatives, while warning the feds that "If blood is shed as a result of that provocation, I will hold them responsible." State officials, meanwhile, including Florida Governor Jeb Bush and his Democratic treasurer Bill Nelson, sent a letter to the White House and Justice Department in which they stated that no state resources -- including state police -- would be used to help deport Elian.

Legal Analyst Andrew Cohen
By emboldening those who are against Elian's return to Cuba, these political signals will make it much more difficult for federal authorities to ultimately enforce the law they have sworn to uphold. They suggest that those who do resort to violence and mayhem will stand a better chance of getting away with their actions. And, most significantly, they suggest that disagreement with the law justifies disobedience to law enforcement. These aren't anarchists making these comments, remember, these are elected public officials who are sworn to uphold the law whatever their personal beliefs.

And the law is abundantly clear. It requires the INS and Justice Department to return the boy to his father since the father wants his son back and is competent to make decisions for him. In other words, the law recognizes that this is a immigration issue and not a child custody issue to be decided in state court. An INS commissioner so decided. An administrative review panel agreed. And a respected federal district judge did, too. The 11th Circuit Court of Appeals, the federal appellate court which now has been asked to look at the issue, almost certainly will back that decision and the legal issue is so clear-cut that the Supreme Court probably won't even get involved.

We may not like the federal laws that require Elian to be returned to his father. Our INS policies are tough, however, because history and experience have suggested that they must be -- lest our government become overwhelmed with residency requests and appeals and infinite "due process" hearings. In immigration matters, the law has created a simplified, quickened version of due process. If anything, actually, the federal government already has afforded Elian's Miami relatives much more "due process" than it was required to afford them -- legally, he could have been sent back long ago.

Historians and politicians often are fond of telling the rest of us that America is a nation of laws, not men. The Elian saga is turning out to be a pretty good test of that pretty nice thought.

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