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The conventional wisdom in the wake of Saturday morning’s raid to retrieve Elian Gonzalez is that Attorney General Janet Reno should have sought a court order to force the Miami relatives to turn over the boy. Senator Arlen Specter, Representative Tom Delay, and several prominent newspapers have claimed that the Attorney General acted too quickly, and that Reno should have asked a federal judge to provide blessing to the law enforcement operation beforehand. Faced with the fact that the Attorney General actually did get a search warrant from a federal magistrate on Friday night, many of these critics are now asking why she did not get a second court order to force the family to turn Elian over to the government. This type of reasoning is extremely dangerous; of all possible places to vest responsibility for such a momentous decision, an unaccountable federal judge with life tenure is an odd one to pick. The suggestion that the Justice Department should have obtained this flurry of court orders is an unnecessary sideshow, and one with potential to undermine our constitutional system of government.

In the infamous Korematsu v. United States, 323 U.S. 214 (1944) case, in which the Supreme Court upheld the internment of Japanese-Americans during World War II, Justice Robert Jackson, a former Attorney General himself, warned that the Court’s decision would lie “about like a loaded weapon” and that the decision will have “a generative power of its own” that will be “a far more subtle blow to liberty than” the internment itself. Jackson’s point was that when the federal courts involve themselves in political matters, politicians can duck behind these judicial decisions and trumpet their acts as legitimate even in circumstances when they are not. Moving to the Elian Gonzalez case, placing federal courts in the mix of what is obviously a political matter permits the relevant actors to dodge their constitutional responsibilities. The phenomenon Justice Jackson feared has already begun, as politicians on both sides of the aisle have been claiming far too much from the federal and state court decisions rendered thus far in the case. In this respect, we must hope that no one overreads a single magistrate’s decision to issue a warrant for Elian’s seizure. The truth is that the courts said that they will stay out of the custody battle, and left the thorny custody determinations up to the Immigration and Naturalization Service (INS), as per standard government operating procedure.

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