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  1. Does Trump's Ban On Muslim Immigrants Violate The Constitution? Roger Algase

    Does Donald Trump's proposal to ban all Muslims from entering the US violate the constitution? Maybe this is the wrong question. Perhaps a better question would be whether Trump cares whether his proposal is constitutional or not, and whether he would be dissuaded from implementing it even if it were ruled to be unconstitutional by the US Supreme Court.

    As originally presented, at least part of his proposal was obviously unconstitutional, because it was not limited to banning non-citizens on the basis of religion, but also would have banned Muslim US citizens who happened to be overseas from returning to the US.

    According to news reports at the time, when a spokesperson for Trump was asked if the ban would apply to American citizen Muslims, the answer was "Mr. Trump says everybody." Other than an ambiguous statement on Fox News, I have not seen any subsequent clarification of this proposal, which would be the most egregious possible violation of the First Amendment's guarantee of freedom of religion, coming from Donald Trump.


    Trump may not be a constitutional scholar, but he certainly must know about the First Amendment. The fact that he has never made clear that his proposed ban would apply only to non-US citizens is highly disturbing.

    It could be a sign that he does not care about the constitution and has no intention of letting himself be bound by it if he becomes president.

    But even giving Trump the benefit of the doubt and assuming that he only meant his proposal to apply to Muslim non-US citizens, is there a valid argument that the "plenary power" of the "political branches" of the government, i.e. Congress and the executive, over immigration, Trumps the First Amendment's guarantee of the free exercise of religion?

    One of the most forceful arguments to the effect that plenary power over immigration overrides constitutional guarantees has been asserted by Temple University Law Professor Jan Ting, who writes:

    "The hysterical response to Donald Trump's proposal to restrict Muslim immigration is unwarranted."


    As will be seen in Part 2 of these comments, Professor Ting's statement is based almost entirely on precedents which were decided under the notorious Chinese exclusion laws in the late 19th Century.

    As an audience member at an immigration seminar which took place a few years ago in New York, I had the opportunity to ask Professor Ting if he thought that the Chinese exclusion laws were a good model for America's immigration system.

    Normally very forthright in arguing in favor of increased immigration enforcement and related restrictive immigration policies, Professor Ting, who (according to Wikipedia) is the US born son of Chinese immigrants who left that country after the Japanese invasion to come to the US, looked uncomfortable (which, I will admit, was one of the purposes of my question) and was silent for a brief time.

    Then he finally said that the Chinese exclusion laws (which would have barred his own parents from becoming naturalized US citizens at the time they immigrated) were "constitutional". That did not answer my question, because everyone in the auditorium already knew that the Chinese exclusion laws had been held Constitutional in that period of rampant racial and religious prejudice and persecution in America.

    But how valid are those decisions as precedents today? And how "plenary" is the "plenary power doctrine? Is this doctrine absolute in the sense that no immigration law or executive action can ever be reviewed by the courts on constitutional, as opposed to purely statutory grounds?

    In Part 2, I will take a look at the cases that Professor Ting cites in favor of upholding Trump's proposed ban on Muslim immigrants from entering the United States and show that, according to these cases, the scope for review of immigration actions on constitutional grounds may be narrow, but it is not non-existent.

    I will then turn to the question whether it would not more appropriate for a 21st Century America, which is demographically moving toward a diverse, multicultural, multi-racial, multi-religious society undreamed of in the late 19th Century and early 20th century era of Chinese exclusion laws and other forms of bigotry against immigrants on the basis of race or religion, to part company at long last with the precedent decisions from that era severely restricting or eliminating constitutional protections for non-US citizens seeking to enter the US as visitors or immigrants.
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School who has been serving mainly skilled and professional immigrants from many different parts of the world and ethnic/religious backgrounds for more than 35 years. His email address is

    Updated 02-22-2016 at 10:14 AM by ImmigrationLawBlogs

  2. Big Win For Anti-Immigrant Extremists In South Carolina's GOP Primary. Roger Algase

    Update: February 21 at 10:21 pm:

    The Hill reports that a Muslim organization, the Muslim Public Affairs Council, has challenged Donald Trump to a debate in a letter which also makes the following charge against the Republican presidential front-runner:

    "Ever since you announced your run for Presidency of the United States, you have scapegoated the American Muslim community and other minority groups for all your perceived ills of America."

    The letter also accused Trump and his supporters of being:

    "scared of anything that is different from you."

    The news item did not say whether Trump has agreed to the debate or replied to the letter.


    Update: February 21 at 1:27 pm:

    POLITICO reports that Donald Trump has now tweeted, in a variation of his "birther" attack on Ted Cruz, that Marco Rubio might not be eligible for the presidency, since he was born to immigrant parents, even though Rubio was born in the US (Miami). Trump did not say why this would make Rubio any less of an American citizen at birth than was the case with Wong Kim Ark, the US born child of Chinese immigrants who were barred by law from ever becoming naturalized US citizens themselves, but whose (Wong Kim Ark's) US citizenship by birth was upheld by the US Supreme Court in 1898 and which decision is still the law of the land in the United States of America today.

    According to the same POLITICO story, Trump later tried to back off from the tweet in a TV interview, saying that he was merely retweeting someone else's comment for the purpose of discussion.


    My original post follows:

    The February 20 Republican South Carolina presidential primary, not unexpectedly, has resulted in a huge win for anti-immigrant extremist candidates. The Hill reports that a CBS News exit poll found that 75 per cent of the voters in the primary said that they support Donald Trump's proposal to ban all Muslims from entering the United States. See

    Trump won a big victory in the primary, with about 32 percent of the vote, and his extreme proposal, which clearly violates the spirit, if not the letter, of the First Amendment to the Constitution, may in all probability have helped him outpoll his two main opponents, Senators Marco Rubio and Ted Cruz.

    The argument that Trump's proposal does not violate the Constitution's guarantee of religious freedom is, of course, based on the doctrine of "plenary power" over immigration in the executive and legislative branches of the government. This doctrine itself, as I have pointed out previously, dates from the time of the Chinese exclusion laws, which were not exactly a shining example of the principles of freedom and equality on which this nation was founded and which the Constitution was meant to protect.

    While supporters of Trump's Muslim ban argue that there is no constitutional right of non-US citizens to enter the US (see Kleindienst v. Mandel, S.Ct, 1972), one has to ask if they would be making the same argument if, say, Congress passed a law banning all non-citizens who had ever owned or used a gun for private purposes from entering the United States.

    If such a law were ever enacted, we would no doubt be hearing quite a bit from gun rights supporters about how the Second Amendment allegedly takes precedence over the plenary power doctrine, which is nowhere expressly written in the Constitution.

    Anti-immigrant extremists also won another victory in South Carolina when Ted Cruz, another anti-immigrant hard liner, and Marco Rubio, a former supporter of immigration reform and more recent anti-immigrant turncoat, who has now adopted Cruz' draconian proposal to strip all DREAMERS of their work permits and deport them, finished in a virtual tie for second place in the primary voting.

    See February 19:

    Marco Rubio flip-flops on immigration: The GOP's most "electable" candidate just got even more extreme

    Et tu, Marco?

    Now that with the departure of former Florida Governor Jeb Bush from the campaign scene, to be followed inevitably by Ohio Governor John Kasich in the near future, there are no longer any Republican presidential candidates left with more "moderate" proposals on immigration, one has to ask whether the Cruz/Rubio strategy of trying to out-Trump Trump on extreme hard line immigration policies has any chance of paying off.

    As soon as one catches up with Trump on immigration, he comes up with something else even more outrageous and "unthinkable".

    What will be next? A Nuremberg Laws type of proposal to strip American Muslims of their US citizenship and deport them, as the Nazis did with the Jews? Use of torture against Central American children who show up at the US-Mexican border (or Wall) seeking asylum?

    As my colleague Matt Kolken has been pointing out, many Central American children are already being detained by the Obama administration under concentration camp conditions.

    Trump has also made the unimaginably obscene suggestion that some Muslims should be shot with bullets dipped in pigs' blood.

    Haroon Moghul, writing in The Guardian on February 20 in response to this unspeakable remark, also comments about the unwillingness of both Cruz and Rubio to stand up against Trump's Islamophobia, in contrast to more principled Republican candidates such as Governors Bush and Kasich, who may have paid a heavy price at the polls for speaking out against this type of bigotry.


    Moghul writes:

    "Marco Rubio pretends there's no such thing as Islamophobia...Ted Cruz is all about carpet bombing huge swaths of the Middle East (Why not just drop lots of pigs' heads?...)"

    Moghul continues:

    "Yet, we are asked to apologize for our religion every time some extremist uses it as a justification for violence. People ask me, over and over again, where the moderate Muslims are as though anything but a fraction are extremists.

    Maybe they should be asking where the moderate Republicans went. There definitely seem to be fewer and fewer of those."

    With Donald Trump's immigration proposals, no matter how shocking they are to the conscience of anyone who believes in the American values of freedom, democracy and respect for human rights, there is always the feeling that we have not yet seen the end. To the contrary, we may only be at the beginning of a long and dark journey.
    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.

    Roger believes that allowing the cancer of anti-immigrant prejudice to grow in our society endangers the fundamental rights of immigrants and American citizens alike, and puts the freedoms of all of us at risk. His email address is

    Updated 02-21-2016 at 09:22 PM by ImmigrationLawBlogs

  3. What Would "White Nationalist" President Mean For Immigration Policy? Roger Algase

    Update: February 20, 1:47 pm

    The following two February 20 Donald J. Trump tweets, as reported in the Huffington Post, are the latest examples of his shameless use of anti-immigrant and religious bigotry in support of his presidential campaign:

    1) "I wonder if President Obama would have attended the funeral of Justice Scalia if it were held in a Mosque? Very sad that he did not go!"

    2) "Remember that Marco Rubio is very weak on illegal immigration. South Carolina needs strength as illegals and Syrians pour in. Don't allow it!"

    How many Syrians have there been "pouring" into South Carolina or anywhere else in America recently? Trump doesn't tell us.

    Update: February 20, 12:20 pm:

    For another opinion to the effect that Donald Trump's dispute with Pope Francis is not primarily about religious doctrine or about definition of the word "Christian", but is about the white nativism in America which is at the heart of Trump's appeal. see Anthea Butler: Trump is a fool to mess with Pope Francis. He plays in a higher league, in The Guardian, February 19.

    She writes:

    "Trump's defense of white Anglo-Saxon Protestantism is gathering those who support him into a strong solidified base...Trump's remarks [against Pope Francis] will galvanize his voters who are white, mostly Protestant and against immigration."

    My original comment appears below:

    I have no intention of entering into a theological dispute between Pope Francis and Donald Trump over who is a Christian and who is not. For one thing, my background is Jewish, not Christian, and I am not qualified to talk about Christian belief. Even if I had such qualifications, this is a site for discussions about immigration law, not about religion.

    But, as writer Jim Wallis comments in the Huffington Post, the real issue raised by Pope Francis' comment that Donald Trump's call for a Wall to keep Mexican and other immigrants of color out of the United States, is not whether such a Wall is consistent with the spirit of Christianity, as the Pope quite reasonably argues that it is not, but what Trump's proposal says about his attitude toward minority immigrants, and what kind of policies we would be likely to see in America toward immigrants of color if Trump is elected president.

    Wallis' article can be found at

    Quite simply, Wallis states that Trump is "a white nationalist candidate, running and winning on the issue of race". Is this accurate, or fair? Let's look at Wallis' evidence for this blunt statement, as stated in his article:

    Wallis writes:

    "Trump's demonization of immigrants, in sharp contrast to facts, has changed the conversation on immigration in America, turning it toward bigger walls and against the 'strangers' that those of us who are Christians. are commanded by Jesus to 'welcome'.

    Instead, Trump the bully calls for rounding them up, breaking up their families and expelling hard-working and law-abiding people who have lived in America for decades."

    Wallis continues:

    "Trunp's call to 'completely shut down' all Muslims from entering America is unconstitutional and un-American, as targeting people on the basis of their faith violates violates our foundational principle of religious liberty. Stopping the hateful spread of Islmophobia and racism must become a bipartisan and trans-partisan issue - that's a moral question."

    And he concludes:

    "The most powerful metaphor for where we are going as a nation is crossing the bridge to a new America. Will we be willing and able to make our way to a genuinely multi-racial and milticultural society, where diversity is ween as a strength rather than as a threat? Or are we headed for a conflictual future of one collision after another, with a resistant and even violent white minority building higher and higher walls?"

    What are the implications for America in terms of immigration policy if a president with an openly race-based ideology takes office next year? Will we go back to the eras of the Chinese exclusion laws and Japanese relocation, with Mexicans and Muslims substituted instead? Will we revive the openly racial, "Nordics" only immigration quotas which were in effect from 1924 to 1965?

    And what are the larger implications for our democracy if America elects a president who openly uses racial divisions and antagonism to take power? Wallis writes:

    "Fear and hatred of 'the other' has created some of the most dangerous movements in human history. Trump positions himself as the 'strong man', the 'winner', and denounces all his opponents as weak and stupid "losers". It's time to name Trump's dangerous rhetoric for what it is. It is not only racist, but also fascist, with all the dangers that ideology implies. The truth is that we have seen this before. And it's time to tell the truth."

    It is all too easy to look at words such as "racist" and "fascist" as mere epithets without any meaning except a desire to engage in name-calling. But we should not forget that these terms do have meaning: they are not just insults, but in not so distant memory they have been actual philosophies of government, if one can use that term.

    One thinks of the Apartheid regime in South Africa, not to mention fascism in Italy under Mussolini, and, more recently, in Argentina, Pope Francis' native country, as well as the National Socialist regime in Germany.

    Could America one day have its own Nuremberg laws, depriving Latinos and Muslims of US citizenship? This is not by any means a far fetched question, in view of the proposals by Trump, and not only Trump, to distort or even change the Constitution in order to deprive million of Latino and other minority US=born children of their birthright citizenship under the 14th Amendment.

    As the presidential primary season progresses, we should look at Donald Trump's rhetoric very carefully, rather that going into denial and dismissing it as merely campaign bluster. If Trump wins the presidency, this rhetoric may contain the seeds of America's future immigration policy, a radically different one from the one we are used to now.

    Trump's speeches may also signal the end of democracy in America as we know it. Could America one day become a country whose defining symbol, the Statue of Liberty, is replaced by a Wall, such as the one that divided Berlin under communism, or sealed off the Warsaw Ghetto under the Nazis? Could American citizens one day be jailed and tortured for standing up for the rights of immigrants?
    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 workers, from many different parts of the world and ethnic/religious backgrounds, obtain work permits, green cards and US citizenship in order to contribute to a diverse, multicultural America.

    Roger's email address is

    Updated 02-20-2016 at 12:47 PM by ImmigrationLawBlogs

  4. GOP Attack Ad on Clinton Highlights Her Mixed Record On Immigration

    by , 02-19-2016 at 08:35 AM (Matthew Kolken on Deportation And Removal)
    Yes, this is a GOP attack ad, but it correctly illustrates Hillary Clinton's conflicting record on immigration:

  5. Who Will Succeed Justice Scalia on the Supreme Court?

    Supreme Court Justice Antonin Scalia died on February 13, 2016. He may have been the most influential Justice on the Court during the past 30 years. His use of the doctrine of "originalism" lead to a multitude of decisions which were, for the most part, favorable to conservatives.

    Justice Scalia's death creates a vacancy on the U.S. Supreme Court.

    The Supreme Court is now divided between 4 liberal justices (Ginsberg, Kagan, Breyer and Sotomayor) and 4 conservative justices (Roberts, Alito, Thomas and Kennedy). President Obama has the opportunity to appoint a justice to the Court which could give liberals a 5-4 majority for the first time in over a generation.

    This prospect has, of course, resulted a deep division between the Republicans and the Democrats in the Senate.

    “The American people should have a voice in the selection of their next Supreme Court justice,” stated Senator Mitch McConnell (R-KY), the Republican majority leader. “Therefore, this vacancy should not be filled until we have a new president.”

    “It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” said Senator Harry Reid (D-NV), the Democratic minority leader. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”

    In reality, few observers expect President Obama to leave a seat on the Supreme Court vacant. It expected that he will soon nominate a someone to fill Justice Scalia's seat on the Court.

    However, since the GOP-controlled Senate must vote on President Obama's nominee, one can expect the hearing before the Senate Judiciary Committee to be contentious and for the appointment to be a major issue during the Presidential election.

    There are many superbly qualified candidates for Justice Scalia's seat on the court for President Obama to consider. Here are two:

    Jacqueline Nguyen is a former prosecutor who was unanimously confirmed by the U.S. Senate in 2009 to serve as a District Court Judge. Later, she was elevated to the U.S. Court of Appeals for the 9th Circuit. She is the daughter of a South Vietnamese Army Major who worked closely with U.S. intelligence officials. At the age of 10, she and her family were transported out of Vietnam by a US military helicopter. She lived in a refugee camp in Camp Pendleton in Southern California for several months. She worked her way through college and law school at her family's donut shop. She is the first Asian-American female ever to serve as a federal appellate judge.

    Sri Srinivasan is a judge on U.S. Court of Appeals for the D.C. Circuit. He was confirmed by the U.S. Senate by a unanimous vote in 2013. He immigrated to the U.S. from India. He is a graduate of Stanford Law School and clerked for former Supreme Court Justice Sandra Day O'Connor. He worked in private practice and served as the Deputy Solicitor General in the U.S. Department of Justice. He has argued over 20 cases before the Supreme Court. He is considered a judicial moderate. If nominated and confirmed, he would be first Asian-American Supreme Court Justice.
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