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  1. New Sup. Ct. Choice Views President As Emperor. This May Protect Trump From Mueller, But Be Devastating For Immigrants - And Democracy. Roger Algase

    It should be easy for even a casual observer of the Supreme Court and of what passes for the "Rule of Law" in the Trump administration to see why Trump picked D.C. Circuit Judge Brett Kavanaugh for the Supreme Court stop made vacant by Justice Anthony Kennedy's retirement. The most likely immediate reason for this appointment can be summed up in two words: Robert Mueller.

    As Slate's legal analyst Dahlia Lithwick writes on July 10:

    "...Kavanaugh has been extraordinarily transparent - perhaps even too transparent - about his affinity for broad constructions of executive power. Nevertheless, the president - whose administration is currently the subject of a wide-ranging criminal investigation - somehow chose the judge who's most likely to endorse the Trumpian view that this is all a massive with hunt, this despite the gamble that Kavanaugh's selection makes him [Trump] look guilty."

    https://slate.com/news-and-politics/...ts-a-gift.html

    However, the issue involved in Kavanaugh's selection goes far beyond what Lithwick pungently - and accurately - describes as follows:

    "The president picked a guy he hopes will hand him a get-out-of-jail-free-card."

    The broader issue is what having Kavanaugh, with his view of virtually unlimited presidential power, on the High Court could mean for America's immigration system - especially the officially color-blind, race and religion neutral one which America has had for the past half century and which Trump, with the support of his two top immigration advisers and enforcers, Stephen Miller and Jeff Sessions, is now fighting so furiously to overturn.

    And beyond that, America's democracy itself could be in acute danger from a president supported by a Supreme Court majority which may now be even closer to putting that president completely above the law, not only with respect to immigration policy, but with respect to to our Constitution, Separation of Powers and our entire system of government.

    To illustrate how confused Kavanaugh appears to be about the difference between a US president and an emperor, here is a quote (from Lithwick's article) from his dissent in a 2011 D.C. Circuit Court case involving the Affordable Care Act:

    "Under the Constitution...the President may decline to enforce a statute that regulates private individuals when the President deems that statute unconstitutional, even if a court has held or would hold that statute constitutional."

    George Mason University law professor Ilya Somin writes the following about Trump's choice of Kavanaugh on July 9:

    "I am far less enthusiastic about Judge Kavanaugh's support for broad executive power in the national security realm. History shows that excessive judicial deference in this field has led to serious abuses. I am also skeptical of Kavanaugh's advocacy of the 'unitary executive' theory - the idea that nearly all executive power must be concentrated in the hands of the president."

    Professor Somin continues:

    "This theory was sound in a period where the scope of executive power was confined to its comparatively narrow original bounds. But it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands in an era when the executive wields vastly greater power than was granted at the time of the founding."

    https://reason.com/volokh/2018/07/09...on-the-kavanau

    How might this imperial view of executive power play out in the area of immigration policy in the "Donald Trump Era", especially now that the Supreme Court has just, in effect, ruled that it is acceptable for the president to use "national security" as a fig leaf to cover his program of overt religious discrimination against immigrants seeking to enter the US in its latest Muslim Ban decision?

    What effect would this doctrine of concentrating such great power in the hands of a single Leader have in the case of a president who has criticized America's entire immigration system as the "dumbest" in the world and has threatened to "close up our country" against immigrants from Central America and other places which he blasts as "shithole countries" which are "not like Norway"?

    What happens, for example, if the president, in exercise of this imperial executive power, decides to stop issuing legal visas to immigrants seeking entry in immigration categories which he doesn't happen to favor and is trying to force Congress to abolish, but which are still valid according to the law of the land?

    I refer specifically to the extended family immigration and Diversity visas which Trump obviously hates and has denounced in speech after speech (because they permit immigrants with darker skins than Trump prefers to come to the US), but which cannot by any rational argument be shown to pose the slightest danger to national security.

    I will explore this and other similar questions about the prospect of uncontrolled one-man presidential power over immigration, and its relation to the continued viability of the United States as a democracy, in further detail in a forthcoming comment.
    _________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards. His practice focuses on specialty occupation (H-1B) and extraordinary ability (O-1) work visas; and green cards through Labor Certification, and though marriage or other family relationships.

    Roger also writes about immigration law from the standpoints of racial equality, equal justice before the law and fundamental human rights, all of which are now under unprecedented attack. Roger's email address is algaselex@gmail.com








    Updated 07-12-2018 at 10:59 AM by ImmigrationLawBlogs

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