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  1. Muslim Ban Decision Wasn't About Korematsu, But About Chinese Exclusion Laws and S. Ct. Decisions Upholding Bigotry Against Immigrants. Roger Algase

    ​Update, June 27 at 2:55 pm:

    Justice Anthony Kennedy's just announced retirement could be a disaster for anyone hoping for any kind of fair and unbiased immigration decision from the Supreme Court for many years to come. Kennnedy's short concurring opinion in the Muslim Ban decision seems to have been meant as a clear signal to Trump that there are limits to the amount of anti-immigrant bigotry that Kennedy would be willing to rubber-stamp.

    Even Roberts' majority opinion had some reservations about Trump's open Islamophobia which would be a warning to any president willing to listen - which Trump is obviously not.

    Now, the way is clear for Trump to appoint a young, immigrant-hating white supremacist ideologue to replace Kennedy, with, no doubt, weak-kneed Republican compliance in confirming him or her without any serious opposition.

    Even after Trump leaves office, far right wing Justices may be dominating the Court and unraveling America's race-neutral, nominally non-discriminatory legal immigration system for many decades to come, taking America back to the openly white supremacist system of a century ago.

    The even bigger danger is that the new, more powerful far right wing Supreme Court majority that we can expect to see soon will rubber-stamp the US into a proto-fascist dictatorship in which the courts are independent in name only, as was the case in Hitler Germany, and their only real function is to carry out the Will of the Supreme Leader, Donald J. Trump.

    The only thing that can prevent this outcome would be a resounding defeat for the Republican Party of Trump in this year's Congressional elections. These elections will not only be a referendum on immigration, as is being widely predicted, but also on whether America will continue as a democracy.

    My earlier comment follows below:

    In yesterday's Supreme Court decision upholding Trump's Muslim ban executive order, there was an exchange between Chief Justice Roberts, writing for the majority, and Justice Sonia Sotomayor in her dissent, over the relevance of the Supreme Court's notorious Korematsu decision upholding the WW2 internment of Japanese-American citizens.

    While both Justices agreed that Korematsu was one of the worst Supreme Court decisions in US history, they clashed over its relevance to the Muslim ban case at issue. Justice Sotomayor justifiably pointed to that case as an illustration of the extremes which can result when the courts uncritically accept "national security" as a justification for even the most egregious violations of elementary constitutional and human rights by the government.

    The Chief Justice, on the other hand, dismissed the comparison because Korematsu had nothing to do with immigration and involved the rights of American citizens.

    It is not necessary to take sides in that dispute, because there is a much closer, and arguably even more disturbing, precedent for Trump's Muslim ban executive order and the June 26 Supreme Court decision upholding it. This precedent is the infamous Chinese exclusion law of 1882 and its bigoted successors, which ultimately cut off all legal immigration from Asia in the first half of the 20th century, as well as the Supreme Court decisions upholding these laws, including notably Chae Chan Ping v. US (1882), discussed below.

    The resemblance between that notorious 129 year old decision and the June 26 Muslim ban decision is so close that in some passages, the language of the two decisions are almost interchangeable.

    This is not something that the five-Justice majority in yesterday's Trump v. Hawaii decision can be proud of.

    I will explain in more detail in my next comment on this unfortunate decision, which upholds religious bigotry against Muslim immigrants and US citizens, and gives more impetus to Trump's white supremacist immigration agenda as a whole, in violation of every principle of equal justice before the law that America stands for.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 06-27-2018 at 07:58 PM by ImmigrationLawBlogs

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