Monday, March 28, 2005

More lies in the Terri Schiavo kerfuffle

John Fund writes a bunch of stuff here that bears only a passing resemblance to anything that actually happened.

Fund misses a few important things and seems to flat-out lie about one. First: the court decision was 4/19, not 4/20, and it denied the INS's request to remove Elian from the country, not from his relative's house.

Fund: "On Thursday, April 20, the 11th U.S. Circuit Court of Appeals...turned down the Justice Department's request to order Elian removed from the home of his Miami relatives.

The Court (2000 WL 381901): "Plaintiff [Elian], however, now moves for an injunction 'to preclude [Plaintiff's] physical removal from the jurisdiction of the United States during the pendency of this appeal.' We conclude that Plaintiff is entitled to such an injunction and grant the motion."

These two couldn't be more different. Fund's reading is that the decision was in response to a Justice Dpt. request, whereas the actual case has Elian requesting relief. (At first, I thought there must be some other decision, since the two are so clearly different. How could a journalist misread plain language like that? But, Fund quotes language that shows up in the case quoted above, so it looks like he did, in fact, misread the case that badly)

Reno then obeyed the court order by not allowing Elian to leave the country until the legal issues had been settled. By that time, the state court had ruled that the relatives didn't properly have custody; this was a concession that the INS could take Elian and return him to the custody of his father. [note: edited for clarity]

Further, they weren't trampling states' rights, because that restraining order of January issued by the florida judge was rescinded by the Florida state supreme court, which correctly recognized that its jurisdiction was pre-empted by the federal government. This is from the court's decision on April 13:

Elian Gonzalez's physical presence in this country is at the discretion of the federal government. The state court cannot, by deciding with whom his custody should lie, subvert the decision to return him to his father and his home in Cuba. This court is prohibited from acting by the Supremacy Clause of the united States Constitution from acting in this case....

The remedy sought in this court is custody of the child. While the court recognizes the many, many authorities that establish that domestic relations, family law, is an area reserved to the state courts, Petitioner fails to recognize the fundamental nature of his case--it is an immigration case, not a family case.

The United States through the Attorney General has articulately and bluntly insisted that reunification will occur. The basis for the custody claim is that the child should not live in Cuba, with his father, and is better off here. The Court's ability to reach that decision is derailed by the federal government decision that he must return to Cuba, his homeland, and be with his father. This court cannot second guess the INS.

Fund concludes:
"I've consistently said that I can't go beyond what my powers are, and I'm not going to do it," the governor says. Janet Reno and the Clinton administration showed no such restraint when it came to Elian Gonzalez.

This is true only in the bizarro world that Fund inhabits. In the real world, the feds didn't trample state rights, but acted in accordance with long standing principles of federal preemption in immigration cases; and they didn't operate outside of the law by violating a court order as Fund would love Jeb to do vis-a-vis Schiavo.