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  1. "First They Came For the Mexicans": Trump's Attacks on Immigrants Put Democracy in Danger. Roger Algase

    The United States Holocaust Museum contains a famous poem written by the anti-Nazi pastor Martin Niemoeller (1892-1984) which reads as follows:

    "First they came for the Socialists, and I did not speak out -
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out -
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out -
    Because I was not a Jew.

    Then they came for me - and there was no one left to speak for me."

    There is another famous poem, by Emma Lazarus - one which, more than any other, defines America as the land of Freedom and Equality for all - a poem which has made and still makes America incomparably greater than any presidential campaign slogan on a baseball cap could ever possibly do - enshrined at the base of the Statue of Liberty.

    Will that poem one day before too long be "repealed and replaced" by one which reads as follows?

    "First they expelled the Mexican immigrants - and I did not speak out - Because I was not a Mexican.

    Then they banned the Muslim immigrants - and I did not speak out -
    Because I was not a Muslim.

    Then they went after the high-skilled H-1B immigrants from Asia - and I did not speak out - Because I was not an Asian high-skilled immigrant.

    Then they took away our democracy - and there was no one left who was allowed to speak out.

    Admittedly, our immigration laws give the president and the executive branch which the president controls a great deal of quasi-authoritarian power over immigration policy and enforcement.

    Even though the courts do not normally relish discussing this at any great length in their judicial opinions, the origins of this power date from the time of legislation intended to keep a different unpopular minority of that period out of the United States.

    I refer to the infamous Chinese exclusion laws, as upheld in a series of Supreme Court decisions of which the most notorious, Chae Chan Ping (1889) will forever be as much of a stain on American history as the much better known 1857 Dred Scott decision.

    This doctrine, known as the Plenary Power of the "political branches" of the government - the Executive and Congress - over immigration, is still with us today, In addition to putting decisions about whether to admit foreign citizens to the US largely, if not entirely, beyond the power of the courts to interfere with - see Kleindienst v. Mandel (1972) and Kerry v. Din (2015) it underpins broad authoritarian statues such as INA Section 212(f) which, read literally, gives the president the absolute power of a dictator over the admission of immigrants.

    The same authoritarian thinking also led to another broad statute, INA Section 274, which, again read literally, gives the federal government the power to prosecute and throw into prison anyone who resists or otherwise interferes with a policy of mass expulsion of Latino, Asian and Middle Eastern immigrants, or whatever other "enforcement" measures the president, as head of the executive branch, may choose to institute.

    In the past, in keeping with the spirit of democracy, these extremely broad, authoritarian powers have been used sparingly, with self-imposed limitations, by previous presidents.

    But this is no longer the case under our current president and his (ironically now embattled) chief immigration enforcer, Attorney General Jeff Sessions. Under this administration, the full authoritarian powers of these laws, especially regarding Section 212(f) are being tested. Increasingly, the courts are being called on to decide whether, with regard to immigration, America will continued to be governed by democratic principles, or whether this critically important area of our law and society will be run as a one-man dictatorship by executive order.

    This question is at the heart of what is at stake in the IRAP Muslim ban (because that is exactly what it is - we now have the president's own tweeted statement to confirm this) which is now before the Supreme Court.

    But this leads to a larger and even more important question. If America accepts the principle of one-man dictatorship over immigration, is there any way that authoritarian government can be kept inside this particular bottle, or, like the genie in the world famous Arab epic story Alf Laila wa Laila ("Thousand and One Nights") will the authoritarianism that pervades every aspect of the current presidency (see James Comey's June 9 testimony before Congress relating to what to all appearances amounts to obstruction of justice by the president), not to mention the president's attacks on the courts, the press, Democratic members of Congress whom he has just barred from receiving information from federal agencies, individual critics, and anyone else who stands in his way on immigration or any other issue) escape from the bottle and engulf the rest of our government and society, resulting in America's no longer being counted among the democratic countries of this world?

    Roger Algase
    Attorney at Law

    Updated 06-08-2017 at 07:10 PM by ImmigrationLawBlogs

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