Justice Taken Too Far


Subject: Fw: Lucid legal analysis of Elian case
Date: Tue, 25 Apr 2000 10:44:36 -0800
From: Jon Roland  <jon.roland@constitution.org>
To: lis-leaf@onelist.com
References: <l03130308b52b7dedea70@[]>

Constitution Opinion (Published)
Source: NY Times Published: April 25, 2000

     Some are wildly comparing the armed seizure of Elin Gonzlez to the
roundup of innocents by the Gestapo. Others think Attorney General Janet
Reno showed admirable patience in dealing with a group of zealots using the
boy as a pawn in its war with Fidel Castro.

But the partisan squabbling over these caricatured views threatens to
obscure a vital question: Where did the attorney general derive the legal
authority to invade that Miami home in order to seize the child?

The fact is, even on the assumption (which I share) that under applicable
legal and moral principles Elian should ultimately be reunited with his
father, the government's actions appear to have violated a basic principle
of our society, a principle whose preservation lies at the core of ordered
liberty under the rule of law.

Under the Constitution, it is axiomatic that the executive branch has no
unilateral authority to enter people's homes forcibly to remove innocent
individuals without taking the time to seek a warrant or other order from a
judge or magistrate (absent the most extraordinary need to act). Not only
the Fourth Amendment but also well-established constitutional principles of
family privacy require that the disinterested judiciary test the correctness
of the executive branch's claimed right to enter and seize.

Although a federal court had ordered that Elian not be removed from the
country pending a determination of his asylum petition, and although a court
had ruled that the Immigration and Naturalization Service could exercise
custody and control of Elian for the time being, no judge or neutral
magistrate had issued the type of warrant or other authority needed for the
executive branch to break into the home to seize the child. The agency had
no more right to do so than any parent who has been awarded custody would
have a right to break and enter for such a purpose. Indeed, the I.N.S. had
not even secured a judicial order, as opposed to a judicially unreviewed
administrative one, compelling the Miami relatives to turn Elian over.

The Justice Department points out that the agents who stormed the Miami home
were armed not only with guns but with a search warrant. But it was not a
warrant to seize the child. Elian was not lost, and it is a semantic sleight
of hand to compare his forcible removal to the seizure of evidence, which is
what a search warrant is for.

To be sure, our courts have allowed immigration officials to obtain areawide
warrants to search workplaces for illegal aliens, and Congress has by
statute empowered immigration officials to search, interrogate and arrest
people without warrants in order to prevent unlawful entry into the country.
But no one suspects that Elian is here illegally.

In fact, it's hard to see any significant immigration-related or other
federal interest in whether Elian was reunited with his father now or after
asylum is denied (if that is the outcome). And, should asylum be granted,
Elian's father might still be granted custody and could then take the boy to
Cuba with him if he so chose; asylum only means permission to stay in the
United States and is not a requirement to stay.

Either way, Ms. Reno's decision to take the law as well as the child into
her own hands seems worse than a political blunder. Even if well intended,
her decision strikes at the heart of constitutional government and shakes
the safeguards of liberty.

Laurence H. Tribe is a professor of constitutional law at Harvard.

---------------End of Original Message-----------------

Constitution Society, 1731 Howe Av #370, Sacramento, CA 95825
916/568-1022, 916/450-7941VM         Date: 04/25/00  Time: 10:44:36
http://www.constitution.org/     mailto:jon.roland@constitution.org

The Siege of Shirley Ann Allen

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