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In a mild but significant break with the president, Senate Majority Leader Mitch McConnell stated on the Joe Scarborough TV show that presidential actions, including Trump's January 27 Muslim ban order (which is properly called a "Muslim ban" since all of the seven countries mentioned in the order are overwhelmingly Muslim in population, including, for example, Yemen, which Wikipedia lists as 99.99 per cent Muslim), are not above judicial review.
According to POLITICO, McConnell said that the power of judges to review the actions of other branches of government for legality applies to:
"Yes, all of us, both Congress and president..."
This is in direct contrast to White House aide Stephen Miller, who has been claiming that, with regard to the Muslim and refugee ban:
"the president's powers here are beyond question."
McConnell also said that he disagrees with the president's attacks against the federal district and appellate judges who have temporarily blocked his Muslim and refugee ban order.
The above is a stark reminder of what is really involved in the issues surrounding the president's January 27 executive order.
Beyond the question of whether some 200 million people living in seven countries (and by extension, potentially, citizens of other, or all, Muslim countries, around the world) can be barred from the United States because of their religion, lies the question of who will have ultimate power in America during the Trump years - the three co-equal branches of government, as provided by our laws and Constitution, or one man - Donald J. Trump.
The POLITICO story is at:
Attorney at Law
Updated 02-15-2017 at 03:07 PM by ImmigrationLawBlogs
There are no reports that I am aware of indicating that Donald Trump's disgraced former national security adviser, Michael Flynn, had any conversations about attitudes toward Muslim immigrants during his discussions with Russian officials which led to his downfall and resignation.
But if that subject had come up during his discussions, Flynn (and his boss Donald Trump) might have been able to learn a great deal about acceptance of Muslims and Muslim immigrants in Russia that would sharply conflict with what the Washington Post, in a February 15 column by Ishaan Tharoor, describes, with a good deal of justification, as Flynn's Islamophobia.
Flynn's ties to Russia are a problem. But what about his Islamophobia?
(Sorry, I do not have a link. Please go to Google.)
In contrast to Flynn's wild statements about Muslims and their religion as being (in effect) the root of all evil, which are detailed in the above WP article, and which I will not dignify by repeating here, Putin's attitudes to Russia's large Muslim population, including Muslim immigrants are, while far from meeting the standards of democratic country, still a great deal more nuanced and realistic.
An exhaustive, in depth discussion of Vladimir Putin's approach toward Muslims, and Muslim immigrants in particular, in Russia is contained in an article (in English) by a research organization in Spain called Grupo De Estudios En Seguridad Internacional (GESI) entitled:
Islam in Russia: Challenge or Opportunity?
In introducing its subject, including an explanation about why Russia needs Muslim immigrants and welcomes them - up to a point - GESI states:
"Russian authorities have elaborated three parallel discourses on Islam to appear both 'Islamophile' and fighting radical Islam."
The article goes on to describe Putin's warm relationship with Muslim leaders whom he regards as supportive of the state, while at the same time taking harsh action against those he suspects of radical tendencies or of other opposition to his regime.
This is a far cry from regarding all Muslims around the world as inherently dangerous or as being in a "War of Civilizations" with the West, as we have been hearing, not only from Flynn, but from Stephen Bannon, another top presidential adviser who reportedly had a major role in developing Trump's disastrous January 27 Muslim travel ban order, which has been put on hold in large part by the 9th Circuit Court of Appeals.
While Flynn's brief role in the Trump White House is now part of America's immigration history, Bannon remains very much at the center of power in Washington.
I will return to the subject of Muslim immigrants in Putin's Russia in a future comment.
Attorney at Law
Updated 02-15-2017 at 12:45 PM by ImmigrationLawBlogs
The latest immigration news in Donald Trump's America is that raids and arrests of unauthorized immigrant "criminal aliens", at least some of whom have never been convicted of a crime and therefore are not criminals under the laws of this country, are continuing to strike fear in immigrant communities throughout America. and may be heading in the direction of full police state operations against Latino and other minority immigrants.
How long will it be before American citizens who have any connection al all with unauthorized immigrants start to fall into the dragnet of a very broad statute, INA Section 274, which makes it a felony to "assist" anyone who is present in the US without permission?
In another development, General Michael Flynn, who achieved notoriety for calling Islam a "cancer" rather than a religion, has resigned as a top national security advisor to the president because of an unrelated imbroglio over his connections with Russia, whose dictator, Vladimir Putin, is Trump's strong supporter.
Will the White House's remaining top Islamophobe, Stephen Bannon, who was reportedly instrumental in preparing Trump's Muslim ban executive order fiasco, be the next to go? No sign of this, but it would not be such a bad idea for those who care about religious freedom and equal rights in America.
Putin, incidentally, has been reported as planning to build a gulag of 83 prison camps, one in or near each major Russian city, for unauthorized immigrants in his country. Will this be an inspiration for his ardent admirer, America's new president?
Attorney at Law
Updated 02-14-2017 at 11:56 AM by ImmigrationLawBlogs
Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court. The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.
The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.
The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits. The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.
I have found no merit in the States arguments in support of either of those claims.
Read more at --
Published originally by The Hill
About the author.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
Update, February 13, 2:10 pm:
For another view similar to the one I have outlined below to the effect that Trump's Muslim ban and stepped up deportation raids could just be the beginning of a much wider program of limiting immigration from non-white areas of the world (let's not kid ourselves - Trump is not likely to be interested in cutting off immigration from places such as Russia, Slovenia and Western Europe). see Greg Sargent writing in the Washington Post on February 13:
Trump's reign of fear may soon get a whole lot worse. Here's what to look for.
(I don't have a link - please use Google to access.)
My original comment follows:
In its February 9 order denying the Justice Department's appeal from a federal District Court's order temporarily blocking Donald Trump's executive order barring entry to the US by citizens of seven Muslim countries and by refugees from all over the world, the 9th Circuit Court of Appeals did more than decide that citizens of the banned countries, and refugees from everywhere, who had been granted or were eligible for legal visas could continue to come to the United States.
The Court also upheld the principles of democracy and separation of powers over America's immigration system, and, at least for the time being, blocked America's disturbing march toward one-man rule over all aspects of our government and society that has been in evidence since our change of administration on January 20, 2017.
But first, let us take up a question which has caused a great deal of comment, namely whether Trump's January 27 order barring almost 200 million citizens of seven overwhelmingly Muslim countries in the Middle East and Africa in the purported interests of "National Security" is a "Muslim Ban" or not.
At the outset, playing around with words in order to make them mean anything one wants to is a very old intellectual game which has been around ever since Socrates spoke and Plato wrote about the absurdities of the Sophists, whose spirit is alive and well today in the arguments of those who would like to pretend that Trump's Muslim Ban is not really a Muslim Ban. Let's look at those arguments.
First, it is claimed that Trump's order is not really directed against Muslims oer se, but only against citizens of certain named Muslim countries amounting to "only" an estimated 15 percent of the total estimated 1.6 billion Muslims in the world.
If numbers or percentages of targeted people belonging to a certain ethnic or religious group are the test of whether that group as a whole is being discriminated against, than one could just as easily argue that a hypothetical ban on immigration to the US by citizens of Israel would not really be aimed against Jews, since more of the world's Jews live outside Israel than in Israel (according to the Pew Research Center - see Google) and Jewish citizens of countries other than Israel would not be affected by the ban.
One has to doubt whether such an argument would be very persuasive among people who are not already committed anti-Semites.
Even more absurdly, one could argue that President Franklin Roosevelt's infamous WWII Japanese-American internment order was not really aimed against people of Japanese ancestry specifically, because it affected only people of Japanese ancestry living on the West Coast, not in other parts of the United States.
One has to wonder how long any professor of American history who maintained such a view would remain in his or her job.
Most absurdly of all, one could even argue that the notorious late 19th century Chinese exclusion laws were not really directed against Chinese as an ethnic group because the laws did not apply to all citizens of China. Under those laws, only Chinese "laborers" were banned from entering the United States, not Chinese "merchants".
Another variation of this argument that the Sophists would no doubt have been proud of was that Trump's ban against the seven countries citizens was not only directed against Muslims, because, if one looks hard enough, one might be able to find a few Christians or Jews living in those countries.
To be sure, this claim may have some "merit" - Wikipedia states, for example, that there are currently 3,000 Christians and 50 Jews in Yemen - together amounting to one hundredth of one per cent of the total population!
One can only imagine Donald Trump reminding his top adviser Stephen Bannon, who has claimed that the West (i.e. Europe and America) is in a "War of Civilizations" against the Muslim world, how important it is to make sure that this tiny number of Christians and Jews are also kept out of the United States, along with the 99.99 percent of the population of Yemen who are Muslims.
Admittedly, Yemen may be a bit out of the way geographically. A major regional power on the banned list such as Iran is more religiously diverse. "Only" 99.4 percent of Iranians are Muslims, again according to Wikipedia, rather than 99.99 percent, as in Yemen.
There is also a more sophisticated argument (no pun intended, of course) which has been put forth in some quarters to the effect that the seven Muslim countries affected by Trump's ban were previously identified by Congress and President Obama as countries which were having problems with or affected by terrorist organizations. See INA Section 217(a)(12)
But this argument overlooks the fact that this statute was enacted only for the limited purpose of requiring citizens of visa waiver countries who had visited the named countries to apply for visas before entering the US.
Nothing in that law or in Obama's presidential order relating to that law contemplated the drastic measure of banning almost 200 million people, more than 99 percent of whom just happen to be Muslims, from entering the United States without any individual showing that admitting any one of them would be detrimental to America's national interest.
True enough, the 9th Circuit, in its February 9 order, did not make a specific finding that Trump's January 27 order was directed against Muslims on the basis of their religion. But it did state that there was a great deal of evidence that this was in fact the intention behind the order, and it left that question open for further fact finding.
Perhaps a stronger argument than any of the above in favor of the proposition that Trump's January 27 order was not directed specifically against Muslims might be the fact that the order also bans refugees from every part of the world, at least "temporarily" (most likely for as long as Trump is president, that is, as is also undoubtedly the case with the "temporary" ban from the seven Muslim Countries - no one who has been listening to Trump's statements about Muslims and refugees both can be naive enough to think that these bans would not be extended by future executive orders if the courts ever allow them to go back into effect).
The January 27 order also very clearly contemplates adding other countries to the banned list as time goes on. Not all of these might necessarily be Muslim countries.
These provisions are consistent with a larger White Nationalist agenda to close off immigration from many, or even most countries of the world outside of Europe. Clearly this broader agenda is not limited to people from Muslim countries.
This is also shown by a bill that has just been introduced by Trump's allies in Congress to make drastic cuts in family based green cards world wide coming on top of the stepped-up deportation raids and roundups which are creating fear and terror in Latino and immigrant communities across America (see my previous ilw.com comment dated February 12). See also:
But the fact that banning immigrants from predominantly Muslim countries may very arguably be only the first step in a plan to cut off, or vastly reduce, most or all immigration from outside Europe, does not mean that Muslims are any less the primary targets of Trump's January 27 order.
In Germany from 1933 to 1945, persecution of allegedly racially inferior "Untermenschen" began with the Jews. It did not end there.
While this does not imply that Donald Trump or his White Nationalist followers support mass murder or genocide in any way - they clearly do not - the parallel between singling out Jews as primary targets of persecution in Germany then and doing the same in America to Muslim immigrants now cannot be overlooked.
I now turn to the main issue involved in the 9th Circuit's decision: do the courts, as one of the three co-equal branches of the government under our Constitution, have the power to look behind a presidential finding under INA Section 212(f) that entry to the US by any designated immigrants or classes of immigrants would be detrimental to the national interest?
On this question, the argument of Trump's Justice Department reminds one of the famous dictum in George Orwell's novel Animal Farm:
"All animals are equal, but some animals are more equal than others."
As will be shown in my forthcoming comment, this is the same dictum that Donald Trump is applying to the three ostensibly co-equal branches of the US government.
For the latest formulation of Trump's claim to have virtually despotic control over entry to the US by non-US citizens, as articulated by his top aide Stephen Miller, despite the 9th Circuit's resounding rejection of this contention, see:
And for a view that Trump's battle for supremacy over the courts on immigration is part of a larger drive for absolute power, see the following article by former Labor Secretary Robert Reich:
My forthcoming comment will look in detail at the two headed Hydra of the DOJ's argument that the courts should in effect suspend America's democracy and cede absolute power to the president over which non-US citizens may and may not enter the United States, namely INA Section 212(f) and the "Plenary Power" doctrine.
It will examine in detail how the 9th Circuit, in its landmark February 9 decision, has dealt with this double-headed threat to the survival of America's immigration system as we have known it for the past half century, and to our democracy itself.
First, in order to understand the significance of both the plenary power over immigration doctrine and of INA Section 212(f), and why they should both be looked at as extraordinary powers, to be used sparingly if at all by a president acting on his or her own, and not as broad power to rewrite America's entire immigration laws de novo, we need to look at the origin and circumstances of these two provisions of law.
In this light, it will become obvious that both of these provisions were enacted to be used as an instrument of persecution against specific classes of immigrants who were unpopular at the time for racial or ideological reasons.
The plenary power over immigration doctrine, which was a direct outgrowth of the 1880's and 1890's Chinese exclusion laws, was developed for the express purpose of making it easier for the federal government to keep Chinese immigrants from entering the US.
INA Section 212(f) was enacted in 1952, at the beginning of the Cold War and the McCarthy era of persecution of Americans and foreign citizens alike who were thought to have "left wing" or "pro-Soviet" views. The purpose of this statute was to make it easier to impose an ideological test fo foreign citizens seeking to enter the US.
In both cases, the intention was to eliminate the courts, and the Constitution, from the equation. Whether it is really as easy as that to make the courts, and America's constitution, disappear whenever the rights of an unpopular racial, ideological or, in the present case, religious group are at issue is a question that was at the heart of the 9th Circuit's decision in blocking Trump's Muslim ban order (which, yes, was exactly that, as I have shown above).
This decision will be discussed in detail in my 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 from diverse parts of the world to obtain work visas and green cards.
Roger's practice is concentrated in visas for H-1B specialty occupations, O-1 extraordinary ability, and J-1 training: and green cards through labor certification and opposite sex or same ssx marriage. His email address is email@example.com
Updated 02-13-2017 at 02:10 PM by ImmigrationLawBlogs