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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 email@example.com
Updated 03-20-2017 at 05:32 PM by ImmigrationLawBlogs
Update: March 18, 12:20 pm
POLITICO reports on March 17 that the 9th Circuit Court of Appeals judges are escalating their attacks on each other in additional opinions written after the five-judge dissent authored by Judge Jay Bybee, discussed below in my expanded version of my original comment first posted on March 17.
I will have more to say about Judge Bybee's dissent and the fierce reaction to it on both sides in an upcoming comment ilw.com comment.
For the POLITICO story, see:
The expanded version of my original comment appears below.
In what could could be one of the most extraordinary judicial opinions ever written in the history of US immigration law, 9th Circuit Judge Jay Bybee, joined by four other of that court's judges, issued a dissenting opinion which sharply criticized Donald Trump personal attacks on the judges of the court, even while supporting Trump's claim of almost unlimited presidential power to ban immigrants from entering the United States.
For a summary of Judge Bybee's dissent an a link to the full opinion in the American Bar Journal, see:
In a lengthy opinion which relied heavily on the alleged limits on judicial power to interfere with "good faith" decisions of the executive branch to exclude non-US citizens from entering the US (citing Kleindienst v. Mandel, S. Ct. 1972, but said nothing about the Constitutional rights of U.S. citizens to free exercise of religion and equal protection of the law, Judge Bybee wrote in his dissent that:
"We are judges, not Platonic guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decision to permit or forbid entry into the United States, to the President and Congress."
Without going into the origin of the Supreme Court's doctrine of "Plenary Power" being vested in Congress and the executive over immigration, dating from the dark days of the Chinese exclusion laws, it is enough to point out that Trump's Muslim ban orders did not even meet the very basic Kleindienst v. Mandel test, cited by Judge Bybee, of being facially legitimate and in good faith.
However, after making clear in his opinion that he (and the other four judges who joined in the dissent) supported Trump's view that the courts have little or no business questioning his power to bar any foreign citizen or citizens he chooses from entering the US for almost any reason he chooses, Bybee, one of America's most conservative judges, who achieved notoriety as the author of the G.W. Bush administration's "Torture Memos", wrote a denunciation of Trump's authoritarian attempts to intimidate the judiciary which, one can safely predict, will be quoted more many years or even centuries to come, for as long as America continues to remain a democracy:
"Even as i dissent from our decision not to vacate the panel's flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were all out of bounds of civic and persuasive discourse - particularly when they came from the parties [i.e. Donald Trump]. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy."
Judge Bybee's stinging rebuke of Trump's personal attacks on judges who do not agree with him concluded:
"Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all."
As if to lend credibility to Judge Bybee's unprecedented rebuke of a sitting president for undermining the rule of law in America, even while agreeing with Trump's position on the case at hand, Trump responded with another, ominous attack against the court's majority judges who supported a more limited view of presidential power, accusing the 9th Circuit as follows:
"That circuit is in chaos and that circuit is frankly in turmoil."
Trump's latest attack follows a threat in February by Republican Senators to break up the 9th Circuit in response to its original decision blocking Trump's seven country Muslim entry ban.
What does this say about the chances for survival of democracy and the rule of law in America while Donald Trump is president?
As I predicted in an earlier Immigration Daily comment, both Trump's claim of unlimited presidential power over immigration and his personal attacks against judges who disagree with him put the foundations of America's democracy at risk.
The issue raised by Trump's attempt to ban more than 100 million Muslims in six, formerly seven, countries from entering the United States has now escalated from an assault on a particular religion to an attack on the Constitution's separation of powers and judicial independence itself.
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 obtain work visas and green cards.
Roger's email address is firstname.lastname@example.org
Updated 03-18-2017 at 01:29 PM by ImmigrationLawBlogs
MU Law is proud to announce that MU Law's Maria Schneider has been named to the Board of Trustees of the Cincinnati Bar Association (CBA). Schneiderís two-year term will begin on May 1, 2017. She will be officially inducted at the CBAís Annual Meeting on April 27, 2017.
Schneider founded, chaired, and now Vice Chairs the CBAís Immigration Practice Group. Twice, under Attorney Schneiderís direction, the Immigration Practice Group won the CBAís Ingenuity Award. Schneiderís cover article on President Trumpís Executive Orders on immigration will be featured in the CBA Report in April 2017.
The CBA will reach itsí 150th Anniversary in January 2022. The CBA Board will focus on ď150 Prime,Ē a five-year strategically eruptive and positively disruptive plan to prepare, engage, envision, and motivate success representing attorneys in the Greater Cincinnati area. The CBA has 3800 members throughout the Greater Cincinnati community.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
The following comment includes revisions made as of March 17 at 9:02 am:
A federal district court judge in Hawaii, Derrick Watson, late in the day on March 15, issued a temporary restraining order putting a nationwide hold on Trump's latest version of the ban on entry to the US by some 100 million citizens of six 99 per cent Muslim countries.
In his opinion, the judge cited a mountain of evidence, both during the presidential campaign and after his inauguration, that the ban was motivated by an intent to disfavor Muslims and their religion, in violation of the guarantee of religious freedom in the first Amendment to the Constitution.
Trump's history of attacking all Muslims as potential terorists as the motivation for the six country ban and his previous seven country version (which Trump said as recently as March 15 that he wishes he had stuck with!) is so obvious that it cannot be seriously challenged.
However, Trump's lawyers are now claiming that the court should have disregarded the obvious truth and accepted Trump's alternative version of reality, that the ban is somehow related to national security despite the very thin veneer of evidence to support that claim produced so far, because many of his antt-Muslim statements were made during the presidential campaign, when candidates will say anything and everything to get elected, rather than after he actually took office.
This ignores the fact that everything Trump has done and said about admitting Muslims to the US is entirely consistent with what Trump said about Muslims and threatened to do to them during the campaign.
Trump's Orwellian insistence that the courts should disregard the open and obvious hatred of Muslims in which he has been revelling ever since he called for a world-wide ban on Muslim entry to the US in December, 2015, would do more than merely violate the religious freedom guaranteed to all Americans, Muslims not excepted, by the First Amendment to our Constitution.
In addition to paraphsasing Orwell's famous dictum in Animal Farm that "All animals are equal, but some animals are more equal than others." by holding, in effect, that "All religions are equal in America, but Islam is less equal than others", Trump is also, in effect, claiming that, as president, he has the power, as Big Brother did in Orwell's 1984, to declare that "2+2 equals 5."
Fortunately, not only for America's core value of freedom of religious belief, but also for continued democracy in America, Judge Watson rejected Trump's extreme claim, not only to be the sole determiner of immigration policy but the sole arbiter of reality - what is true and what is false.
The District Court's decision can be accessed at:
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.
Roger's email address is email@example.com
Updated 03-18-2017 at 11:30 AM by ImmigrationLawBlogs
Famed Constitutional Law Professor Alan Dershowitz believes Trump's executive order banning travel from 6 Muslim majority countries will be easily upheld by the Supreme Court stating "I do not think it's unconstitutional. I think the Supreme Court will uphold it even if Gorsuch is not yet on the Supreme Court. But if he does make it there in time then it will be a clearer victory for the Trump administration in the Supreme Court."