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Update: March 19, 2:28 pm:
While the following report about the cancellation of an annual Cinco de Mayo Mexican-American community festival in Philadelphia over fears of ICE deportation arrests is not directly related to the Muslim entry ban issue discussed below, it is an additional indication of the manner in which Trump's immigration executive orders, issued pursuant to his claim of presidential "Plenary Power" over immigration, are having a chilling effect on the rights and freedoms of minority US citizens.
One thing is certain: this is not the last time we are likely to hear about Americans, including but not limited to those belonging to Muslim, Latino and other minority communities, becoming afraid to exercise their Constitutional rights and freedoms as a result of Trump's exercise of unilateral presidential power over immigration.
My original comment follows:
In the essentially trivial and superficial debate now taking place among the majority and dissenting judges in the 9th Circuit Court of Appeals, and between supporters and critics of Hawaii US District Judge Derrick Watson over how much, if any, weight to give to Trump's consistent record of campaign statements and proposals attacking all Muslims around the world in determining the real motive for Trump's revised six Muslim country entry ban, there is a danger of losing sight of the larger issue involved.
See my comment in the March 17 issue of Immigration Daily
Will Trump's claim to have "Plenary Power" to ban over 100 million people from six (formerly seven) 99 per cent Muslim countries based on little more than his own say-so lead to an attempt on his part to assert "Plenary Power" over all Americans and to take whatever action he chooses against racial and religious minorities in the US?
In order to answer this, we have to look at the origin of the Plenary Power doctrine itself, in the dark days of the late 19th century Chinese exclusion laws. Natsu Taylor Saito, a Law Professor at Georgia State University, has provided a comprehensive analysis of the way in which the racial attitudes that period are still affecting the rights of minority immigrants in the 21st century in his 2003 article in the Asian American Law Journal which will be discussed in detail in my next comment, entitled:
The Enduring Effect of the Chinese Exclusion Cases: The "Plenary Power" Justification for Ongoing Abuses of Human Rights
10 Asian Am L.J. 13 (2003)
(I am sorry - I have not been able to find a direct link which works - please go to Google to access the full article.)
By way of introduction to this vast and crucial topic, however, it is difficult to overstate the absurdity of the argument being raised by Trump's supporters, including the five dissenting judges in the 9th Circuit who agreed with his view that the courts should step aside and give the president free reign (spelling and pun entirely intentional) over admission of foreign citizens to the US, while at the same time condemning the president for his intimidating personal attacks on the judges in the majority on that court who disagreed with his claim to unlimited power over entry to the US. to the effect that Trump's numerous and consistent campaign and, other pre-inauguration statements demonizing and vilifying all Muslims around the world as potential terrorists who hate America, should be ignored in deciding whether Trump's entry bans were motivated by "animus" against Muslims and their religion in general.
What difference can the exact timing of these statements, all of which were made within the past just over a year before his initial January 27 entry ban order, make in determining the real motives for Trump's entry ban orders against citizens of countries which are almost 100 percent Muslim?
As the ancient Greek poet Hesiod wrote some 700 years before the Christian era (in a somewhat different context!):
alla tie moi tauta peri dryn e peri petren?
("What does this matter to me more than a tree or a rock?")
Even if if the courts were to accept the argument of the five dissenting 9th Circuit judges and overlook all the negative things that Trump said about Muslims in general during the campaign, including his threats to put US mosques under surveillance and set up multiple databases to track Muslims in the US, Trump's statements and actions after taking office as president alone are enough to show intense "animus" against Muslims in general based mainly or solely on their religion.
Let us take a brief look at some of some of these post-inaugural statements and actions before moving on to the main question in my forthcoming comment.
First, upon becoming the president, Trump installed two of the most notorious opponents of the Muslim religion and Muslims in general as top White House advisers. I refer, of course to the now disgraced Michael Flynn, who attacked the Muslim religion as a "cancer", and to the still powerful and influential White House Senior adviser Stephen Bannon, who has claimed that America is in a "War of Civilizations" with the Muslim world.
Next, after appointing these advisers, Trump, according to news reports too numerous to need citation here, prepared and issued his initial January 27 Muslim US entry ban order (let's call a spade a spade here, without using misleading euphemisms such as "travel ban" - the more than 100 million Muslims affected were totally free to travel wherever they wished - as long as they stayed away from the United States of America) in a process that froze out his real national security experts and relied almost entirely on Bannon and on another White House adviser who also has a reputation as being no friend of Muslims or the Muslim world, Stephen Miller.
Next, after this disastrous introduction of the initial entry ban order, and while hundreds, if not thousands, of innocent Muslim visitors and permanent residents, including not only students, skilled workers and family members of Americans returning from overseas visits, but even a baby coming here for life-saving surgery and a translator who had risked his life to help American soldiers overseas, were either summarily sent back or were trapped and detained for hours at airports throughout the US without access to lawyers until the courts stepped in to stop these abuses, Trump announced that the order was going "smoothly" and exactly as planned.
Then after the order was put on hold by a federal district judge in Seattle, Trump launched a vicious personal attack on the judge, James Robart, accusing him, and all opponents of the ban order, of allowing potential "terrorists" to pour into the US.
Finally, just before the new, six country order was released, Trump made a speech in which he said that he should have stuck by the disastrous original order. At the same time, Stephen Miller announced that the new order would accomplish the "same policy objectives" as the original one.
Is this not enough evidence that the two entry ban orders were motivated by the same antagonism toward Muslims and their religion that Trump not only exhibited, but reveled in, during his campaign?
Where is the "good faith" in these two executive orders which the Supreme Court ruled in Kleindienst v. Mandel (1972) and Kerry v. Din (2015) must be shown in order to insulate executive branch actions in relation to admission of immigrants or other foreign citizens from judicial scrutiny?
To use another ancient Greek analogy, are the courts supposed to drink the forgetful waters of Lethe, not only with regard to Trump's antagonistic statements toward Muslims made a year or six months ago, but also as recently as a month ago or even last week, when he was no longer just a candidate, but was already the president?
As Ovid, the great Latin epic poet of Greek mythology who was "deported" from his own city of citizenship, Rome, by another autocrat, Augustus Caesar, to spend the rest of his (Ovid's) life in exile, wrote:
utque soporificae biberem si pocula Lethes,/temporis adversi sic mihi sensus abest.
"As if I were drinking a sleep-inducing cup of Lethe's waters/ I lose all sense of these adverse times." (My translation.)
With the above as introduction, in my forthcoming comment i will address to the central issue presented by Trump's two Muslim ban orders, namely what his claim of absolute, "Plenary" power over entry to the United States by non-US citizens could mean for the future of racial and religious equality in the Untied States, and for the survival of our democracy.
This forthcoming comment will contain a detailed discussion of Professor Saito's above cited Law Journal article.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been representing mainly skilled and professional immigrants from diverse parts of the world for more than 35 years. His email address is firstname.lastname@example.org
Updated 03-20-2017 at 05:32 PM by ImmigrationLawBlogs